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COPYRIGHT LAW REVISION
HEARINGS ^« "^'"''^
BEFORE THE
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-FOURTH CONGRESS
FIRST SESSION
ON
H.R. 2223
COPYRIGHT LAW REVISION
MAY 7, ,S, 14, 15; JUNE 3, 5, 11. 12 : JT'LY 10, 17. 23 ; SEPTEMBER 11,
18 ; OCTOBER 9, 30 ; NOVEMBER 6, 20 ; AND DECEMBER 4, 1975
Serial No. 36
''"*\a.^^^^'''^'''"'J^
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
57-786 O WASHINGTON : 1976
NORTHEASTERN UNIVERSITY SCHOOL of UW UBRARY
COMMITTEE ON THE JUDICIARY
PETER W. RODINO, JR.. New Jersey, Chairman
JACK BROOKS, Texas EDWARD HUTCHINSON, Michigan
ROBERT W. KASTENMEIER, Wisconsin ROBERT McCLORY, Illinois
DON EDWARDS, California TOM RAILSBACK, Illinois
WILLIAM L. HUNGATE, Missouri CHARLES E. WIGGINS, California
JOHN CONYERS, JR., Michigan HAMILTON FISH, Jr., New York
JOSHUA BILBERG, Pennsylvania M. CALDWELL BUTLER, Virginia
WALTER FLOWERS, Alabama WILLIAM S. COHEN, Maine
JAMES R. MANN, South Carolina CARLOS J. MOORHEAD, California
PAUL S. SARBANES, Maryland JOHN M. ASHBROOK, Ohio
JOHN F. SEIBERLING, Ohio HENRY J. HYDE, Illinois
GEORGE E. DANIELSON, California THOMAS N. KINDNESS, Ohio
ROBERT F. DRINAN, Massachusetts
BARBARA JORDAN, Texas
RAY THORNTON, Arkansas
RLIZABETH HOLTZMAN, New York
EDWARD MEZVINSKY, Iowa
HERMAN BADILLO, New York
ROMANO L. MAZZOLI, Kentucky
EDWARD W. PATTISON, New York
CHRISTOPHER J. DODD, Connecticut
WILLIAM J. HUGHES, New Jersey
MARTIN A. RUSSO, Illinois
Earl C. Dudley, Jr., General Counsel
Garner J. Cline, Staff Director
Herbert Fuchs, Counsel
William p. Shattuck, Counsel
Alan A. Parker, Counsel
James F. Falco, Counsel
Maurice A. Barboza, Counsel
Thomas W. Hutchison, Counsel
Arthur P. Endres, Jr., Counsel
Daniel L. Cohen, Counsel
Franklin G. Polk, Counsel
Thomas E. Mooney, Counsel
Alexander B. Cook, Counsel
Coonstantine J. GekaSj Consel
Alan F. Coffey, Jr., Counsel
Kenneth N. Klee, Counsel
Raymond V. Smietanka, Counsel
Subcommittee on Courts, Civil Liberties, and the Administration of Justice
ROBERT W. KASTENMEIER, Wisconsin, Chairman
GEORGE E. DANIELSON, California TOM RAILSBACK, Illinois
ROBERT F. DRINAN, Massachusetts CHARLES E. WIGGINS, California
HERMAN BADILLO, New York
EDWARD W. PATTISON, New York ^
Herbert FCchs, Counsel
Bruce A. Lehman^ Counsel
— Gail P. Higgins, Counsel
^^ Timothy A. Boggs, Professional Staff Member
* * Thomas E. Mooney, Associate Counsel
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CONTENTS
Hearings held on — ^ase
May 7, 1975 1
May 8, 1975 - 119
May 14, 1975 183
May 15, 1975 267
June 3, 1975 373
June 5, 1975 433
June 11, 1975 483
June 12, 1975 683
July 10, 1975 857
July 17, 1975 991
July 23, 1975 1297
September 11, 1975 1393
September 18, 1975 1663
October 9, 1975 1779
October 30, 1975 1807
November 6, 1975 1835
November 20, 1975 1865
December 4, 1975 1951
Text of — «a
H.R. 2223 3
H.R. 4965 87
H.R. 5345 80
S. 1361 857
Witnesses :
Abrams, George, Alphabets, Inc 1014
Prepared statement 1027
AleinikoflF, Eugene N., counsel to the Agency for Instructional Tele-
vision and Other Educational Television Agencies 859
Prepared statement 860
Allen, Nicholas E., counsel, Music Operators of America 421
Barco, George J., general counsel, Pennsylvania Cable Television
Association 656
Prepared statement 661
Baumgarten, Jon, Macmillan, Inc., and Harcourt Brace and
Jovanovich 978
Bender, Ivan R., on behalf of the Educational Media Producers
Council 978
Prepared statement
Bikel, Theodore, president. Actors Equity Association 1298
Prepared statement 1352
Biller, Joel W., Secretary for Commercial Affairs and Business
Activities, Department of State 119
Binns, J. Warren, Jr., administrator of Instructional Television &
Radio and Educational Products Dissemination 859
Prepared statement 882
Blake, Eubie, American Guild of Authors and Composers 1648
Bradley, Rex A., chairman, National Cable Television Association.. 483
Prepared statement 501
Bresnan, William J., president. Cable Television Division of Tele-
prompter Corp 667
Prepared statement 679
Brylawski, E. Fulton, chairman, Copyright Committee, Bar Associa-
tion of the District of Columbia 459
Prepared statement 460
(in)
rv
Witnesses — Continued Page
Cairns, Robert W., executive director, American Chemical Society 229
Prepared statement 231
Cameron, Prof. Rondo, author 467
Prepared statement 473
Chapin, Edward W., counsel. Broadcast Music, Inc 907
Ciancimino, Albert F., counsel, SESAC, Inc 398, 1738
Prepared statement 397, 1738
Cohen, Edwin G., executive director of the Agency Instructional
Television 859
Prepared statement 880
Cohen, John, member of the board of directors. National Association
of Recording Merchandisers, Inc 1571
Prepared statement 1571
Collins, Fred, Jr., president. Music Operators of America 410
Cooper, Edward, vice president. Motion Picture Association of
America 1731
Cooper, Robert, executive secretary. Community Antenna Television
Association 613
Prepared statement 624
Copland, Aaron, composer , 374
Prepared statement 377
Coppedge, John O., chairman. National Collegiate Athletic Associa-
tion, Cable Television Association, Cable Television Association
Subcommittee 820
Prepared statement 817
Cornils, Wayne, chairman. Small Market Radio Committee, National
Association of Broadcasters 1366
Cramer, Edward M., president. Broadcast Music, Inc 907
Davis, Louis F. (Chip), composer 396
Prepared statement 395
Dew, Walter, Advertising Typographers Association 1142
Prepared statement 1212
Ebenstein, Daniel, on behalf of Leonard Storch Enterprises, Inc 1142
Prepared statement 1144
Evans, Robert V., vice president and general counsel, CBS, Inc 684, 765
Prepared statement 683, 764
Farmer, Ernest R., president, Shawnee Press, Inc., Delaware Water
Gap, Pa 344
Prepared statement 342
Feist, Leonard, executive vice president. National Music Publishers
Association 1 579
Fitzpatrick, James, general counsel, Recording Industry Association
of America 1298, 1393
Ford, Frederick W., counsel. Ad Hoc Committee of Concerned Cable
Television Operators for a Fair Copyright Law 627
Prepared statement 636
Freitag, Bernard J., teacher. Council Rock High School, New Town,
Pa 276
Gastel, Joseph, copyright attorney 1014
Prepared statement 1019
Glover, John D., director, Cambridge Research Institute 1401
Prepared statement - 1402
Goldbloom, Irwin, Deputy Assistant Attorney General, Civil Division,
Department of Justice 127
Prepared statement 149
Golodner, Jack, executive secretary. Council of AFL-CIO Unions for
Professional Employees 1 298
Gortikov, Stanley, president. Recording Industry Association of
America, Inc 1298, 1393
Prepared statement 1304, 1394
Gramuglia, Thomas, Independent Record & Tape Association of
America 1 238
Prepared statement 1279
Hamlisch, Marvin, American Guild of Authors and Composers 1646
Witnesses — Continued
Hardy, Ashton R., General Counsel, Federal Communications Com- Page
mission 433
Prepared statement 444
Heilman, David, EC Tape Service 1238
Hightower, John, chairman, Advocates for the Arts 1298
Prepared statement 1339
Kitchens, Howard B., executive director, Association for Educational
Communications & Technology 288
Prepared statement 279
Hochberg, Philip R., on behalf of Don V. Ruck, vice president. Na-
tional Hockey League 810
Prepared statement 812
Hogan, Robert F., executive secretary. National Council of Teachers
of English 292
Prepared statement 290
Holmes, Lee, president, GuamCable TV Co 1717
Prepared statement 1719
Hoopes, Townsend, president. Association of American Publishers 237
Prepared statement 238, 1702
Howard, William K., president, Hollywood Film Council 700
Prepared statement 698
Kaminstein, Abraham L., former Register of Copyrights, Library of
Congress 91
Kapp, Michael, president, Warner Special Products 1570
Karp, Irwin, counsel for the Authors League of America, Inc 216
354, 907, 1704
Prepared statement 220, 348, 910, 1705, 1764
Keller, Thomas J., Acting General Counsel, Office of Telecommuni-
cations Policy, Executive Office of the President 447
Prepared statement 457
Kiser, David B., associate, Cambridge Research Institute 1401
Korman, Bernard, general counsel, American Society of Composers,
Authors & Publishers 374, 907
Krelstein, Harold, chairman. Radio Board of Directors, National
Association of Broadcasters 1366
Kuhn, Bowie, Commissioner of Baseball 794
Prepared statement 785
Latman, Alan, attorney. International Typographic Composition
Association 991
Prepared statement 1004
Leeds, Henry, counsel, Mergenthaler Corp 1014
Lieb, Charles H., counsel for the Association of American Publishers 225
Prepared statement 226
Linden, Bella L., representing educational publishers 313
Prepared statement 311
Lorenz, John G., Acting Librarian of Congress, Library of Congress 91
Low, Edmon, representative of six library associations 184
Prepared statement 199
Mawdsley, Russell, chairman, Legislative Committee, Music Operators
of America 421
Prepared statement 418
Meell, Efdward J., chairman. Educational Media Producers Council 330
Prepared statement 316
Merry, Donald D., president, Sicom Electronics Corp 474
Prepared statement 479
Meyer, Gerald, counsel. Motion Picture Association 759
MuUiken, Charles, International Typographic Association 11 42
Prepared statement 1212
Nathan, Robert R., economist and attorney, president, Robert R.
Nathan Associates 1580
Oliver, Sy, composer 390
Prepared statement 391
Parker, Michael, director, typographic development, Mergenthaler 391
Corp 1014
Prepared statement 1036
Patterson, Perry S., counsel, Rock-Ola Manufacturing Corp 411
Prepared statement 413
VI
Witnesses — Continued
Peer, Ralph, vice president, Peer-Southern Organization; director, T'age
National Music Publishers Association 1645
Quayle, Donald R., senior vice president for broadcasting. Corpora-
tion for Public Broadcasting 859
Prepared statement 863
Raskind, Leo J., representing the Association of American Law
Schools, the American Association of University Professors, and the
American Council on Education 272
Prepared statement 269
Ringer, Barbara, Register of Copyrights, Library of Congress 91,
1779, 1807, 1865, 1901
Prepared statement 95
Rockwell, Dr. Margaret, Washington Ear 1757
Sandler, Jack B., chairman, Government Relations Committee of
the Book Manufacturers Institute, Inc 1695
Prepared statement 1697
Sheppard, Dr. Walter, representing the Association of Public Radio
Stations 1757
Simon, Gerald A., managing director, Cambridge Research Institute- 1401
Simpson, Paul C, Nashville, Tenn 693
Prepared statement 690
Smith, Eric H., associate general counsel. Public Broadcasting
Service 859
Prepared statement 865
Steinbach, Sheldon E., staff counsel, American Council on Education. _ 268
Strackbein, 0. R., representing International Allied Printing Trades
Association 1663
Prepared statement 1666
Summers, John B., general counsel, National Association of Broad-
casters 777
Prepared statement 774
Tegtmeyer, Rene D., Assistant Commissioner for Patents, Depart-
ment of Commerce 163
Prepared statement 159
Valenti, Jack, president, Motion Picture Association of America, Inc.,
and the Association of Motion Picture & Television Producers, Inc- _ 704
Prepared statement 705, 761, 1731
Van Arkel, Gerard, general counsel. International Typographical
Union 1694
Prepared statement 1668
Wally, I. Alan, president. Record & Tape Association of America 1238
Prepared statement 1251
Wasilewski, Vincent T., president. National Association of Broad-
casters 1366
Prepared statement 1363
Wasserstrom, Alfred H., copyright attorney 1142
Prepared statement 1217
Wicks, David O., Jr., Becker Communications Associates 598
Prepared statement 607
Wolff, I. Sanford, the American Federation of Musicians (AFL-CIO),
and the American Federation of Television and Radio Artists
(AFL-CIO) 1298
Prepared statement 1298
Won Pat, Hon. Antonio Borja, a Representative in Congress from
the Territory of Guam 1717
Zimmerman, Thomas F., first vice president. National Religious
Broadcasters, Inc 1 743
Prepared statement 1745
Zurkowski, Paul G., president, Information Industry Association 340
Prepared statement 332
vn
Additional material —
Affidavits and letters concerning licensing of copyrighted products to Page
television stations and the sale of advertising time to advertisers 743
Allen, Joseph P., Assistant Administrator for Legislative Affairs,
National Aeronautics and Space Administration, letter dated
September 5, 1975, to Hon. Peter W. Rodino, Jr., chairman, House
Committee on the Judiciary 178
American Broadcasting Companies, Inc., prepared statement 827
American Business Press, Inc., prepared statement 252
American Guild of Authors and Composers and the National Music
PubHshers Association, joint statement 1586, 1641
American Society of Composers, Authors, and Publishers, prepared
statement 925, 947
Biemiller, Andrew, director. Legislative Department, AFL-CIO, letter
dated July 22, 1975, to Hon. Robert W. Kastenmeier 1335
Bresnan, William J., president. Cable Division, Teleprompter Corp.. 849
Broadcast Music, Inc., prepared statement 389, 962, 965
Burns, Aaron, president. International Typeface Corp., letter dated
July 28, 1975, to Hon. Robert W. Kastenmeier 1020
"Cable Television Under the 1972 Rules and the Impact of Alternative
Copyright Fee Proposals," by Bridger M. Mitchell 517
Cairns, Robert W., American Chemical Society, letter dated June 25,
1975, to Hon. Robert W. Kastenmeier 243
"Copyrightability of Typeface and Type Font Design," statement of
position, Castcraft Industries, Inc 1228
Coyle, Maurice J., M.D., Department of Radiology, Providence Hos-
pital, Anchorage, Alaska, letter dated July 9, 1975, to Hon. Peter W.
Rodino, Jr 215
Davis, Hal C, president, American Federation of Musicians, letter
dated July 8, 1975, to Hon. Robert W. Kastenmeier 1658
Ebenstein, Daniel, Amster and Rothstein, counselors at law, letter
dated July 18, 1975, to Hon. Robert W. Kastenmeier 1194
Evans, Robert V., vice president, CBS, letter dated July 3, 1975, to
Hon. Robert W. Kastenmeier, chairman. Subcommittee on Courts,
Civil Liberties, and the Administration of Justice 689
Feist, Leonard, National Music Pubhshers' Association, Inc., letter
dated October 3, 1975, to Hon. Robert W. Kastenmeier 1651
Finn, James B., Ph. D., senior vice president, research and develop-
ment, the C. V. Mosby Co., letter dated August 8, 1975, to Dr.
Ray Alan Woodriff 265
General license agreement, restaurants, taverns, nightclubs, and simi-
lar establishments 385
Harris, James A., president. National Education Association, pre-
pared statement 274
Hightower, John B., chairman. Advocate for the Arts/Association
Councils for the Arts, prepared statement 263
Ivy, Emma G., R.N., Wrangell General Hospital, Wrangell, Alaska,
letter dated July 22, 1975, to Hon. Don Young 215
Keaney, Kevin J., general counsel. Federal Librarians Association,
prepared statement 262
King, Frank Peewee, composer, prepared statement 394
Korman, Bernard, general counsel, American Society of Composers,
Authors, and Publishers, letter dated August 6, 1975, to Hon.
Robert W. Kastenmeier 383
Lindow, Lester W., executive director. Association of Maximum
Service Telecasters, prepared statement 845
Lorenz, John G., Acting Librarian of Congress, letter dated August
26, 1975, to Hon. Peter W. Rodino, Jr., chairman. House Com-
mittee on the Judiciary 174
McCloskey, Robert J., Assistant Secretary for Congressional Rela-
tions, Department of State, letter dated May 7, 1975, to Hon. Peter
W. Rodino, Jr., chairman. House Committee on the Judiciary 172
McKenna, Frank, executive director. Special Libraries Association,
prepared statement 209
Marke, Julius J., American Association of Law Libraries, prepared
statement 254
VIII
Additional material — iContinued
Marshall, Nancy H., director, Wisconsin Interlibrary Loan Service,
Madison, Wis., letter dated May 6, 1975, to Hon. Robert W. Page
Kastenmeier 215
Mathews, Hon. David, Secretarj', Department of Health, Education,
and Welfare, prepared statement 261
Mercer, Johnny, composer, prepared statement 381
Mergenthaler Linotype Co., prepared statement 1054
Nathan, Robert R., president, Robert R. Nathan Associates, Inc.,
letter dated October 24, 1975, to Hon. Robert W. Kastenmeier 1640
National Broadcasting Co., Inc., prepared statement 825, 1385
National Music Publishers Association and American Guild of Authors
& Composers, prepared statement 920
Nimmer, Prof. Melville B., professor of law, UCLA School of Law,
prepared statement 1038
Norwood, Frank W., executive secretary. Joint Council on Educational
Telecommunications, letter dated July 10, 1975, to Hon. Robert W.
Kastenmeier 883
Parker, Michael, director, Tj^pographical Development Mergenthaler
Linotype Co., letter dated July 28, 1975, to Hon. Robert W.
Kastenmeier 1041
Passano, William M., chairman of the board, Williams & Wilkins Co.,
prepared statement 260
Rayin, Mona (R.N.), instructor coordinator of R.N. Programs and
Outreach, letter dated August 12, 1975, to Hon. Don Young 214
"Registration of Original Typeface Designs: Extension of Comment
Period," vol.. No. 223, Federal Register, November 18, 1975 1017
"Registration of Original Typeface Designs," vol. 39, No. 176, Federal
Register, September 10, 1974 1016
Ringer, Barbara, Register of Copyrights, letter dated June 6, 1975, to
Hon. Robert W. Kastenmeier 1008
Ruck, Don V., vice president. National Hockey League, prepared
statement 813
Schrader, Dorothy M., General Counsel, Copyright Office, prepared
statement 1015
Stevens, Hon. Ted, a U.S. Senator From the State of Alaska, letter
dated October 8, 1975, to Hon. Robert W. Kastenmeier 1659
Steuermann, Clara, president. Music Library Association, prepared
statement 207
"The Great American Rip-Off," bj' Mike Terranova, a pamphlet
published by the Independent Record and Tape Association of
America 1265
Times Mirror, prepared statement 852
"Typeface Design Protection," statement of position of the American
Institute of Graphic Arts 1226
Valenti, Jack, president. Motion Picture Association of America, Inc.,
letters to Hon. Robert W. Kastenmeier —
September 10, 1975 1724
November 7, 1975 . 1736
Vanantwerpen, F. J., president. Council of Engineering and Scientific
Society Executives, prepared statement 369
Wally, Alan I., president, Record and Tape Association of America,
letter dated July 22, 1975, to Hon. Robert W. Kastenmeier 1263
Warren, Albert, chairman. Copyright Committee, Independent News-
letter Association, prepared statement 367
Wigron, Harold E., National Education Associations 276
Woodriff, Dr. Ray, Department of Chemistry, Montana State Univer-
sity, prepared statement 265
Young, Hon. Don, a Representative in Congress From the State of
Alaska, letter dated October 2, 1975, to Hon. Robert W.
Kastenmeier 214
Appendixes
Appendi?t 1. — Teleprompter Corp. memorandum on Constitutionality
of Proposed Copyright Legislation (H.R. 2223) 1917
Appendix 2. — 18 briefing papers submitted by the Copyright Office__ 2051
Appendix 3. — Report of Working Group of Conference on Resolution
of Copyright Issues (dealing with library photocopying) 2092
Appendix 4. — Miscellaneous communications 2124
COPYRIGHT LAW REVISION
WEDNESDAY, MAY 7, 1975
House of Representatives,
Subcommittee on Courts, Civil Liberties,
AND THE Administration of Justice
OF THE Committee on the Judiciary
Washingto?!, B.C.
The subcommittee met, pursuant to notice, at 10:10 a.m., in room
2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier
[chairman of the subcommittee] presiding.
Present : Representatives Kastemneier, Danielson, Drinan, Pattison,
Railsiback, and Wiggins.
Also present : Herbert Fuchs and Bruce A. Lehman, counsels ; and
Thomas E. Mooney, associate counsel.
Mr. Kastenmeier. The committee will come to order. We have met
this morning to begin subcommittee hearings on H.R. 2223, introduced
by the Chair, for the general revision of the copyright law.
Ten yeare ago this month in this room the subcommittee began what
turned out to be 22 days of public hearings on a bill having the same
purpose, namely, the total revision of title 17, United States Code, the
copyright law.
The 1965 hearings, followed by many subcommittee meetings, re-
sulted in a revision bill being reported to and passed by the House of
Representatives on April 11, 1967. The Senate, however, failed to act
on that bill and the House-passed bill expired.
In September 1974, when the Senate at last did pass a copyright law
revision bill, the involvement of the House Judiciaiy Committee in
the nomination of Nelson Rockefeller to be Vice President prevented
House consideration of the measure during what was left of 1974.
However, the Congress did enact legislation creating a National Com-
mission on New Technological Uses of Copyrighted Works, of which
the President is to appoint the members.
With the coining of 1975, Senator McClellan reintroduced the 1974
Senate-passed bill as S. 22, and the Chair introduced an identical bill
in the House under the number H.R. 2223. Title II of the bills S. 22 and
H.R. 2223, go beyond providing copyright law revision, and provide
protection of ornamental designs of useful articles.
In addition, the subcommittee has before it two measures directly
related to the proposed revision. One of these, H.R. 5345, introduced
by our subcommittee colleague, Mr. Danielson, would create a per-
former's royalty as part of the bundle of rights known as copyright.
The other, H.R. 4965, introduced by Mr. Won Pat, would authorize
the making of video tapes for transmission on noncontiguous cable
television systems, that is, in places other than the 48 mainland States.
(1)
H.R. 2223, H.R. 5345, and H.R. 4965 will be placed in the record
of the hearings at the conclusion of this statement.
Article I, section 8 of the Federal Constitution empowers Congress
"to promote the progress of science and useful arts, by securing to
authors * * * the exclusive right to their * * * writings * * *." At the
very least, therefore, Congress has the constitutional obligation to
determine whether and to what extent the progress of the useful arts
will be promoted by congressional grants of exclusivity for the writ-
ings of authors.
The purpose of the pending legislation is, in short, to bring up to
date the copyright law which has not been substantially revised since
1 909. It should be our commitment to correct this neglect, for the great
and growing acceleration of technology and the resultant new uses of
copyrighted works have rendered much of the existing law inade-
quate and obsolete.
The subcommittee is pleased, this morning, to open the hearings by
welcoming witnesses from the Library of Congress. We have the
Honorable John G. Lorenz, Acting Librarian of Congress; Abraham
L. Kaminstein, former Register of Copyrights who went through the
1965-67 hearings with us, and Barbara Ringer, also an old friend, the
present Register of Copyrights. Mr. Lorenz, will you begin ?
[H.R. 2223, H.R. 5345, and H.R. 4965 are as follows:]
94th CONGRESS f f ^% OOOO
1ST Session J^^ |^^ ZZZO
IN THE HOUSE OF REPRESENTATIVES
January 28,1975
Mr. Kastenmeier introduced the following bill ; which was referred to the Com-
mittee on the Judiciary
A BILL
For the general revision of the Copyright Law, title 17 of the United States
Code, and for other purposes.
1 Be it enacted hy the Seiiate and House of Representatives of the
2 United States of America in Congress assembled,
3 TITLE I— GENERAL REVISION OF COPYRIGHT LAW
4 Sec. 101. Title 17 of the United States Code, entitled "Copyrights",
5 is hereby amended in its entirety to read as follows :
6 TITLE 17— COPYRIGHTS
Chapter Sec.
1. Subject Matter and Scope of Copyright 101
2. CoPTRiGHT Ownership and Transfer 201
3. Duration of Copyright 301
4. Copyright Notice, Deposit, and Registration 401
5. Copyright Infringement and Remedies 501
6. Manufacturing Requirement and Importation 601
7. Copyright Office 701
8. Copyright Royalty Tribunal. 801
7 Chapter 1.— SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec.
101. Definitions.
102. Subject matter of copyright : In general.
103. Subject matters of copyright : Compilations and derivative works.
104. Subject matter of copyright : National origin.
105. Subject matter of copyright : United States Government works.
106. Exclusive rights in copyrighted works.
107. Limitations on exclusive rights : Fair use.
108. Limitations on exclusive rights : Reproduction by libraries and archives.
2
1 TITLE 17— COPYRIGHTS— Continued
2 Chapter 1.— SUBJECT MATTER AND SCOPE OF
3 COPYRIGHT— Continued
Sec.
109. Limitations on exclusive rights : Effect of transfer of particular copy or
phonorecord.
110. Limitations on exclusive rights : Exemption of certain performances and
displays.
111. Limitations on exclusive rights : Secondary transmissions.
112. Limitations on exclusive rights : Ephemeral recordings.
113. Scope of exclusive rights in pictorial, graphic, and sculptural works.
114. Scope of exclusive rights in sound recordings.
115. Scope of exclusive rights in nondramatic musical works : Compulsory license
for making and distributing phonorecords.
116. Scope of exclusive rights in nondramatic musical works : Public perform-
ances by means of coin-operated phonorecord players.
117. Scope of exclusive rights : Use in conjunction with computers and similar
information systems.
4 § 101. Definitions
5 As used in this title, the following terms and their variant forms
6 mean the following :
7 An "anonymous work" is a work on the copies or phonorecords
8 of which no natural person is identified as author.
9 "Audiovisual works" are works that consist of a series of related
10 images which are intrinsically intended to be shown by the use of
11 machines or devices such as projectors, viewers, or electronic
13 equipment, together with accompanying sounds, if any, regardless
13 of the nature of the material objects, such as films or tapes, in
14 which the works are embodied.
15 The "best edition" of a work is the edition, published in the
16 United States at any time before the date of deposit, that the Li-
17 brary of Congress determines to be most suitable for its purposes.
18 A person's "children" are his immediate offspring, whether
19 legitimate or not, and any children legally adopted by him.
20 A "collective work" is a work, such as a periodical issue, an-
21 thology, or encyclopedia, in which a number of contributions,
22 constituting separate and independent works in themselves, are
23 assembled into a collective whole.
24 A "compilation" is a work formed by the collection and assem-
25 bling of pre-existing materials or of data that are selected, coordi-
26 nated, or arranged in such a way that the resulting work as a
27 whole constitutes an original work of authorship. The term "com-
28 pilation" includes collective works.
29 "Copies" are material objects, other than phonorecords, in which
30 a work is fixed by any method now known or later developed, and
31 from which the work can be perceived, reproduced, or otherwise
1 communicated, either directly or with the aid of a machine or
2 device. The term "copies" includes the material object, other than
3 a phonorecord, in which the work is first fixed.
4 "Copyright owner," with respect to any one of the exclusive
5 rights comprised in a copyright, refers to the owner of that par-
6 ticular right.
7 A work is "created" when it is fixed in a copy or phonorecord
8 for the first time ; where a work is prepared over a period of time,
9 the portion of it that has been fixed at any particular time con-
10 stitutes the work as of that time, and where the work has been
11 prepared in diiferent versions, each version constitutes a separate
12 work.
13 A "derivative work" is a work based upon one or more pre-
14 existing works, such as a translation, musical arrangement, dram-
15 atization, fictionalization, motion picture version, sound record-
16 ing, art reproduction, abridgment, condensation, or any other
17 form in which a work may be recast, transformed, or adapted. A
18 work consisting of editorial revisions, annotations, elaborations,
19 or other modifications which, as a whole, represent an original
20 work of authorship, is a "derivative work."
21 A "device," machine," or "process" is one now known or later
22 developed.
2*^ To "display" a work means to show a copy of it, either directly
24 or by means of a film, slide, television image, or any other device
25 or process or, in the case of a motion picture or other audiovisual
26 work, to show individual images nonsequentially.
27 A work is "fixed" in a tangible medium of expression when its
28 embodiment in a copy or phonorecord, by or under the authority
29 of the author, is sufficiently permanent or stable to permit it to
30 be perceived, reproduced, or otherwise communicated for a period
31 of more than transitory duration. A work consisting of sounds.
32 images, or both, that are being transmitted, is "fixed" for pur-
33 poses of this title if a fixation of the work is being made simultane-
34 ously with its transmission.
35 The terms "including" and "such as" are illustrative and not
36 limitative.
37 A "joint work" is a work prepared by two or more authors
38 with the intention that their contributions be merged into insepa-
39 rable or interdependent parts of a unitary whole.
40 "Literary works" are works other than audiovisual works,
6
1 expressed in words, numbers, or other verbal or numerical sym-
2 bols or indicia, regardless of the nature of the material objects,
3 such as books, periodicals, manuscripts, phonorecords, or film, in
4 which they are embodied.
5 "^Motion pictures" are audiovisual works consisting of a sei-ies
6 pi related images which, when shown in succession, impart an
7 impression of motion, together with accompanying sounds, if any.
8 To "perform" a work means to recite, render, play, dance, or
9 act it, either directly or by means of any device or pix)cess or, in
10 the case of a motion picture or other audiovisual work, to show its
11 images in any sequence or to make the sounds apcqmpanying it
12 audible.
13 "Phonorecords" are material objects in which sounds other than
14 those accompanying a motion picture or otlier ai|diovisual woi-k,
15 are fixed by any method now known or later xieveloped, and from
16 which the sounds can be perceived, reproduced, or otherwise com-
17 municated, either directly or with the aid of a n^achine or device.
18 The term "phonorecords" includes the material object in which
19 the sounds are first fixed.
20 "Pictorial, graphic, and sculptural works" include two-dimen-
21 sional and three-dimensional works of fiixe, graphic, and applied
22 art, photographs, prints and art reproductions, maps, globes,
23 charts, plans, diagrams, and models.
24 A "pseudonymous work" is a work on the copies or plienor
25 records, of which the author is identified under a fictitious name.
26 "Publication" is the distribution of copies or phonorecords of a
27 work to the public by sale or other transfer of ownership, or by
28 rental, lease, or lending. The offering to distribute copies or
29 phonorecords to a group of persons for purposes of further disr
30 tribution, public performance, or public display, constitutes
31 publication. A public performance or display of a work does not
32 of itself constitute publication.
33 To perform or display a work "publicly" means i
( 1 ) to perform or display it at a place open to the public or
at any place where a substantial number of persons outside
of a normal circle of a family and its social acquaintances is
34
35
36
37 gathered ;
38
39
(2) to transmit or otherwise communicate a performance
or display of the work to a place specified by clause (1) or
*" to the public, by means of any device or process, whetlier the
1 members of the public capable of receiving the performance
2 or display receive it in the same place or in separate places
3 and at the same time or at different times.
4 "Sound recordings" are works that result from the fixation of
5 a series of musical, spoken, or other sounds, but not including the
6 sounds accompanying a motion picture or other audiovisual work,
7 regardless of the nature of the material objects, such as disks,
8 tapes, or other phonorecords, in which they are embodied.
9 "State" includes the District of Columbia and the Common-
10 wealth of Puerto Rico, and any territories to which this title is
11 made applicable by an act of Congress.
12 A "transfer of copyright ownership" is an assignment, mort-
13 gage, exclusive license, or any other conveyance, alienation, or
14 hypothecation of a copyright or of any of the exclusive rights
15 comprised in a copyright, whether or not it is limited in time or
16 place of effect, but not including a nonexclusive license.
17 A "transmission program" is a body of material that, as an
18 aggregate, has been produced for the sole purpose of transmission
19 to the public in sequence and as a xmit.
20 To "transmit" a performance or display is to communicate it
21 by any device or process whereby images or sounds are received
22 beyond the place from which they are sent.
23 The "United States," when used in a geographical sense, com-
24 prises the several States, the District of Columbia and the Com-
25 monwealth of Puerto Rico, and the organized territories under
26 the jurisdiction of the United States Government.
27 A "useful article" is an article having an intrinsic utilitarian
28 function that is not merely to portray the appearance of the
29 article or to convey information. An article that is normally a part
30 of a useful article is considered a "useful article."
31 The author's "widow" or "widower" is the author's surviving
32 spouse under the law of his domicile at the time of his death,
33 whether or not the spouse has later remarried.
34 A "work of the United States Government" is a work prepared
35 by an officer or employee of the United States Government as part
36 of his official duties.
37 A "work made for hire" is :
38 (1) a work prepared by an employee within the scope of
39 his employment ; or
•8
1 (2) a work specially ordered or commissioned for use as
2 a contribution to a collective work, as a part of a motion pic-
3 ture or other audiovisual work, as a translation, as a supple-
4: mentary work, as a compilation, as an instructional text, as
5 a test, as answer material for a test, as a photographic or
6 other portrait of one or more persons, or as an atlas, if the
7 parties expressly agree in a written instrument signed by
8 them that the work shall be considered a work made for hire.
^ A "supplementary work" is a work prepared for publication
10 as a secondary adjunct to a work by another author for the
^^ purpose of introducing, concluding, illustrating, explaining,
12 revising, commenting upon, or assisting in the use of the other
13 work, such as forewords, afterwords, pictorial illustrations,
1^ maps, charts, tables, editorial notes, musical arrangements,
1^ answer material for tests, bibliographies, appendixes, and
1^ indexes. An "instructional text'* is a literary, pictorial, or
1' graphic work prepared for publication with the purpose of
1° use in systematic instructional activities.
§ 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in
"1 original works of authorship fixed in any tangible medium of expres-
"2 sion, now known or later developed, from which they can be perceived,
"3 reproduced, or otherwise communicated, either directly or with the aid
2* of a machine or device. Works of authorship include the following
"^ categories :
2" ( 1 ) literary works ;
^' (2) musical works, including any accompanying words ;
^^ (3) dramatic works, including any accompanying music;
^^ (4) pantomimes and choreographic works;
^" ( 5 ) pictorial, graphic, and sculptural works ;
^1 ( 6 ) motion pictures and other audiovisual works ;
^^ (7) sound recordings.
(b) In no case does copyright protection for an original work of
autliorship extend to any idea, plan, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the form
in which it is described, explained, illustrated, or embodied in such
work.
19
20
33
34
35
36
37
^° §103. Subject matter of copyright: Compilations and derivative
3" works
(a) The subject matter of copyright as specified by section 102 in-
40
9
1 eludes compilations and derivative works, but protection for a work
2 employing pre-existing material in which copyright subsists does not
3 extend to any part of the work in which such material has been used
4 unlawfully.
5 (b) The copyright in a compilation or derivative work extends only
6 to the material contributed by the author of such work, as dis-
7 tinguished from the pre-existing material employed in the work,
8 and does not imply any exclusive right in the pre-existing material.
9 The copyright in such work is independent of, and does not aifect
10 or enlarge the scope, duration, ownership, or subsistence of, any copy-
11 right protection in the pre-existing material.
12 § 104. Subject matter of copyright : National origin
13 (a) Unpublished Works. — The works specified by sections 102 and
14 103, while unpublished, are subject to protection under this title with-
15 out regard to the nationality or domicile of the author.
16 (b) PtJBLisHED Works. — The works specified by sections 102 and
17 103, when published, are subject to protection under this title if —
18 (1) on the date of first publication, one or more of the authors
19 is a national or domiciliary of the United States, or is a national,
20 domiciliary, or sovereign authority of a foreign nation that is a
21 party to a copyright treaty to which the United States is also a
22 party ; or
23 (2) the work is first published in the United States or in a for-
24 eign nation that, on the date of first publication, is a party to the
25 Universal Copyright Convention of 1952 ; or
26 (3) the work is first published by the United Nations or any
27 of its specialized agencies, or by the Organization of American
28 States ; or
(4) the work comes within the scope of a Presidential procla-
mation. Whenever the President finds that a particular foreign
31 nation extends, to works by authors who are nationals or domicili-
32 aries of the United States or to works that are first published in
33 the United States, copyright protection on substantially the same
34 basis as that on Avhich the foreign nation extends protection to
35 works of its own nationals and domiciliaries and works first pub-
lished in that nation, he may by proclamation exlend protection
3' under this title to works of which one or more of the authors is,
on the date of first publication, a national, domiciliary, or sov-
ereign authority of that nation, or which was first published in
that nation. The President may revise, suspend, or revoke any
29
30
40
41
42
10
8
1 such proclamation or impose any conditions or limitations on
2 protection under a proclamation.
3 (c) The expropriation, by a <iovernmental organization of a for-
4 eijrn country, of a copyripfht, or the ri<rht to secure a copyrifrht, or
5 any rigfht comprised in a copyright, or any right in a work for which
6 copyright may be secured, or the transfer of a copyright or of any such
7 right, or the power to authorize any use of the work thereunder, from
8 the author or copyright owner to a governmental agency of a foreign
9 country pursuant to any law, decree, regulation, order or other action
10 of the government effecting or requiring such transfer, shall not be
11 given effect for the purposes of this title.
12 §105. Subject matter of copyright: United States Government
13 works
14 Copyright protection under this title is not available for any work
15 of the United States Government, but the United States Government
16 is not precluded from receiving and holding copyrights transferred
17 to it by assignment, bequest, or otherwise.
18 § 106. Exclusive rights in copyrighted works
19 Subject to sections 107 through 117, the owner of copyriglit under
20 this title has the exclusive rights to do and to authorize any of the
21 following :
22 (1) to reproduce the copyrighted work in copies or phono-
23 records ;
24 (2) to prepare derivative works based upon the copyrighted
25 work ;
26 (3) to distribute copies or phonorccords of the copyrighted
27 work to the public by sale or other transfer of ownersliip, or by
28 rental, lease, or lending;
29 (4) inthecaseof literary, musical, dramatic, and choreographic
30 works, pantomimes, juotion pictures and other audiovisual works.
31 to perform the copyrighted work publicly ;
32 (5) in the case of literary, musical, dramatic and choreographic
33 works, pantomimes, and pictorial, graphic, or sculptural works,
34 including the individual images of a motion picture or other
35 audiovisual work, to display the copyrighted work publicly.
36 § 107. Limitations on exclusive rights: Fair use
37 Notwithstanding the provisions of section 106, the fair use of a
38 copyrighted work, including such use by reproduction in copies or
39 phonorecords or by any other means specified by that section, for pur-
40 poses such as criticism, comment, news reporting, teaching, scholar-
11
1 ship, or research, is not an infringement of copyright. In determining
2 whether the use made of a work in any particular case is a fair use
3 the factors to be considered shall include :
4 ( 1 ) the purpose and character of the use ;
5 (2) the nature of the copyrighted work ;
6 (3) the amount and substantiality of the portion used in re-
7 lation to the copyrighted work as a whole ; and
8 (4) the effect of the use upon the potential market for or value
9 of the copyrighted work.
10 §108. Limitations on exclusive rights: Reproduction by libraries
11 and archives
12 (a) Notwithstanding the provisions of section 106, it is not an in-
13 fringement of copyright for a library or archives, or any of its em-
14 ployees acting within the scope of their employment, to reproduce no
15 more than one copy or phonorecord of a work, or distribute such copy
16 or phonorecord, under the conditions specified by this section, if :
17 (1) The reproduction or distribution is made without any pur-
18 pose of direct or indirect commercial advantage;
19 (2) The collections of the library or archives are (i) open to the
20 public, or (ii) available not only to researchers affiliated with the
21 library or archives or with the institution of which it is a part, but
22 also to other persons doing research in a specialized field ; and
23 (3) The reproduction or distribution of the work includes a
24 notice of copyright.
25 (b) The rights of reproduction and distribution under this section
26 apply to a copy or phonorecord of an unpublished work duplicated in
27 facsimile form solely for purposes of preservation and security or for
28 deposit for research use in another library' or achives of the type de-
29 scibed by clause (2) of subsection (a), if the copy or phonorecord
30 reproduced is currently in the collections of the library or archives.
31 (c) The right of reproduction under this section applies to a copy
32 or phonorecord of a published work duplicated in facsimile form solely
33 for the purpose of replacement of a copy or phonorecord that is dam-
34 aged, deteriorating, lost, or stolen, if the library or archives has, after
35 a reasonable effort, determined that an unused replacement cannot be
36 obtained at a fair price.
37 (d) The rights of reproduction and distribution under this section
38 apply to a copy, made from the collection of a library or archives
39 where the user makes his request or from that of another libraiy or
40 archives, of no more than one article or other contribution to a copy-
12
10
1 righted collection or periodical issue, or to a copy or phonorecord of a
2 small part of any other copyrighted work, if :
3 (1) The copy becomes the property of the user, and the library
4 or archives has had no notice that the copy would be used for any
5 purpose other than private study, scholarship, or research ; and
6 (2) The library or archives displays prominently, at the place
7 where orders are accepted, and includes on its order form, a wam-
8 ing of copyright in accordance with requirements that the Reg-
9 ister of Copyrights shall prescribe by regulation.
10 (e) The rights of reproduction and distribution under this section
11 apply to the entire work, or to a substantial part of it, made from the
12 collection of a library or archives where the user makes his request or
13 from that of another library or archives, if the library or archives has
14 first determined, on the basis of a reasonable investigation that a copy
15 or phonorecord of the copyrighted work cannot be obtained at a fair
16 price, if :
17 (1) The copy becomes the property of the user, and the library
18 or archives has had no notice that the copy would be used for any
19 purpose other than private study, scholarship, or research; and
20 (2) The library or archives displays prominently, at the place
21 where orders are accepted, and includes on its order form, a wam-
22 ing of copyright in accordance with requirements that the Register
23 of Copyriglits shall prescribe by regulation.
24 (f) Nothing in this section —
25 (1) shall be construed to impose liability for copyright in-
26 fringement upon a library or archives or its employees for the un-
27 supervised use of reproducing equipment located on its premises,
28 provided that such equipment displays a notice that the making
29 of a copy may be subject to the copyright law ;
30 (2) excuses a person who uses such reproducing equipment or
31 who requests a copy under subsection (d) from liability for copy-
32 right infringement for any such act, or for any later use of such
33 f opy5 if it exceeds fair use as provided by section 107 ;
34 (3) in any way affects the right of fair use as provided by sec-
35 tion 107, or any contractual obligations assumed at any time by
36 the library or archives when it obtained a copy or phonorecord of
37 a work in its collections ;
38 (4) shall be construed to limit the reproduction and distribu-
39 tion of a limited number of copies and excerpts by a library or
13
11
1 archives of an audiovisual news program subject to clauses (1),
2 (2), and (3) of subsection (a).
3 (g) The rights of reproduction and distribution under this section
4 extend to the isolated and unrelated reproduction or distribution of a
5 single copy or phonorecord of the same material on separate occasions.
6 but do not extend to cases where the library or archives, or its
7 employee :
8 (1) is aware or has substantial reason to believe that it is
9 engaging in the related or concerted reproduction or distribution
10 of multiple copies or phonorecords of the same material, whether
11 made on one occasion or over a period of time, and whether
12 intended for aggregate use by one or more individuals or for sepa-
13 rate use by the individual members of a group ; or
14 (2) engages in the systematic reproduction or distribution of
15 single or multiple copies or phonorecords of material described
16 in subsection ( d ) .
17 (h) The rights of reproduction and distribution under this section
18 do not apply to a musical work, a pictorial, graphic or sculptural work,
19 or a motion picture or other audiovisual work other than an audio-
20 visual work dealing with news, except that no such limitation shall
21 apply with respect to rights granted by subsections (b) and (c).
22 §109. Limitations on exclusive rights: Effect of transfer of par-
23 ticular copy or phonorecord
24 (a) Notwithstanding the provisions of section 106(3), the owner of
25 a particular copy or phonorecord lawfully made under this title, or any
26 person authorized by him, is entitled, without the authority of the
27 copyright owner, to sell or otherwise dispose of the possession of that
28 copy or phonorecord.
29 (b) Notwithstanding the provisions of section 106(5), the owner
30 of a particular copy lawfully made under this title, or any person
31 authorized by him, is entitled, without the authority of the copyright
32 owner, to display that copy publicly, either directly or by the projec-
33 tion of no more than one image at a time, to viewers present at the
34 place where the copy is located.
35 (c) The privileges prescribed by subsections (a) and (b) do not,
36 unless authorized by the copyright owner, extend to any person who
37 has acquired possession of the copy or phonorecord from the copy-
38 right owner, by rental, lease, loan, or otherwise, without acquiring
39 ownership of it.
14
12
1 § 110. Limitations on exclusive rights: Exemption of certain per-
2 formances and displays
3 Notwithstanding the provisions of section 106, the following are not
4 infringements of copyright :
5 ( 1 ) performance or display of a work by instructors or pupils
6 in the course of face-to-face teaching activities of a nonprofit
7 educational institution, in a classroom or similar place devoted
8 to instruction, unless, in the case of a motion picture or other
9 audiovisual work, the performance, or the display of individual
10 images, is given by means of a copy that was not lawfully made
11 under this title, and that the person responsible for the perform-
12 ance knew or had reason to believe was not lawfully made ;
1^ (2) performance of a nondramatic literary or musicial work
1* or display of a work, by or in the course of a transmission, if :
1^ (A) the performance or display is a regular part of the
systematic instructional activities of a governmental body or
l * a nonprofit educational institution ; and
" (B) the performance or display is directly related and of
material assistance to the teaching content of the transmis-
sion ; and
(C) the transmission is made primarily for :
22
(i) reception in classrooms or similar places normally
23
19
20
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
devoted to instruction, or
(ii) reception by persons to whom the transmission is
directed because their disabilities or other special circum-
stances prevent their attendance in classrooms or similar
places normally devoted to instruction, or
(iii) reception by officers or employees of governmen-
tal bodies as a part of their official duties or employ-
ment;
(3) performance of a nondramatic literary or musical work
or of a dramatico-musical work of a religious nature, or display of
a work, in the course of services at a place of worship or other
religious assembly ;
(4) performance of a nondramatic literary or musical work
otherwise than in a transmission to the public without any pur-
pose of direct or indirect commercial advantage and without
payment of any fee or other compensation for the performance
to any of its performers, promoters, or organizers, if :
(A) there is no direct or indirect admission charge, or
15
13
1 (B) the proceeds, after deducting the reasonable costs of
2 producing the performance, are used exclusively for educa-
3 tional, religious, or charitable purposes and not for private
4 financial gain, except where the copyright owner has served
5 notice of his objections to the performance under the follow-
6 ing conditions:
7 (i) The notice shall be in writing and signed by the
8 copyright owner or his duly authorized agent; and
9 (ii) The notice shall be served on the person respon-
10 sible for the performance at least seven days before the
11 date of the performance, and shall state the reasons for
12 his objections ; and
13 (iii) The notice shall comply, in form, content, and
1^ manner of service, with requirements that the Register
15 of Copyrights shall prescribe by regulation ;
1^ (5) communication of a transmission embodying a performance
1' or display of a work by the public reception of the transmission
1° on a single receiving apparatus of a kind commonly used in pri-
19 vate homes, unless :
(A) a direct charge is made to see or hear the transmis-
sion; or
(B) the transmission thus received is further transmitted
23 to the public ;
2^ (6) performance of a nondramatic musical work in the course
■^5 of an annual agricultural or liorticultural fair or exhibition con-
"^" ducted by a governmental body or a nonprofit agricultural or hor-
■^ ' ticultural organization ;
2° (7) performance of a nondramatic musical work by a vending
establishment open to the public at large without any direct or
indirect admission charge, where the sole purpose of the perform-
ance is to promote the retail sale of copies or phonorecords of the
work and the performance is not transmitted beyond the place
^ where the establishment is located.
^ §111. Limitations on exclusive rights: Secondary transmissions
(a) Certain Secondary Transmissions Exempted. — -The second-
ary transmission of a primary transmission embodying a performance
or display of a work is not an infringement of copyright if :
(1) the secondary transmission is not made by a cable system,
and consists entirely of the relaying, by the management of a
20
21
22
29
30
38
39
hotel, apartment house, or similar establishment, of signals trans-
1
16
14
mitted by a broadcast station licensed by the Federal Communica-
2 tions Commission, within the local service area of such station, to
3 the private lodgings of guests or residents of such establishment,
4 and no direct charge is made to see or hear the secondary trans-
5 mission; or
6 (2) the secondary transmission is made solely for tlie purpose
' and under the conditions specified by clause (2) of section 110; or
8 (3) the secondary transmission is made by a common, contract,
9 or special carrier who has no direct or indii-ect control over the
10 content or selection of the primary transmission or over tlie par-
11 ticular recipients of the secondary transmission, and whose activ-
12 ities with respect to the secondary transmission consist solely of
13 providing wires, cables, or other communications channels for the
1^ use of others : Provided, That the provisions of this clause extend
15 only to the activities of said carrier with respect to secondary
1" transmissions and do not exempt from liability the activities of
1' others with respect to their own primai-y or secondary transmis-
1° sion; or
1^ (4) the secondary transmission is not made by a cable system but
2^ is made by a governmental body, or other nonprofit organization,
"1 without any purpose of direct or indirect commercial advantage,
22 and without charge to the recipients of the secondary transmission
^^ other than assessments necessary to defray tlie actual and reason-
2* able costs of maintaining and operating the secondary transmis-
25 sion service.
2" (b) Secondary Transmissiox of Primary Transmissiox to Con-
2' TROLLED Group. — Notwithstanding the provisions of subsections (a)
2o and (c), the secondary transmission to tlie public of a primary trans-
2" mission embodying a jjerformance or display of a work is actionable as
''^ an act of infringement under section 501, and is fully subject to the
^1 remedies pi'ovided by sections 502 througli 5(l(;, if the jirimary trans-
'^2 mission is not made for reception by tlic public at large but is con-
''^ trolled and limited to reception by particulai' lucuibers of the pul)lic.
^^ (c) Secoxdary Traxsmissioxs by Cable Systems. —
(1) Subject to the provisions of clause (2) of this subsection, sec-
ondary transmissions to the jDublic by a cable system of a i^rimary
*" ti-ansmission made by a broadcast station licensed by the Federal
Communications Commission and embodying a performance or dis-
play of a work shall be subject to compulsory licensing upon compli-
*0 ance with the requirements of subsection (d) in the following cases:
17
15
1 (A) Where the signals comprising the primary transmission
2 are exclusively aural and the secondai-y ti-ansmission is permis-
3 sible under the rules, regulations or authorizations of the Federal
4 Communications Commission ; or
5 (B) Where the community of the cable system is in whole or
g in part within the local service area of the primary transmitter;
7 or
8 (C) Where the carriage of the signals comprising the second-
9 ary transmission is permissible under the rules, regulations or
10 authorizations of the Federal Communications Commission.
11 (2) Notwithstanding the provisions of clause (1) of this subsection,
12 the secondary transmission to the public by a cable system of a pri-
13 mary transmission made by a broadcast station licensed by the Fed-
14: eral Communications Commission and embodying a performance or
15 display of a work is actionable as an act of infringement under section
16 501, and is fully subject to the remedies provided by sections 502
17 through 506, in the following cases :
18 (A) Where the carriage of the signals comprising the second-
19 ary transmission is not permissible under the rules, regulations
20 or authorizations of the Federal Communications Commission ; or
21 (B) IVli ere the cable system, at least one month before the date
22 of the secondary transmission, has not recorded the notice speci-
23 fied by subsection (d) .
24 (d) Compulsory License foe Secondary Transmissions by Cable
25 Systems. —
26 (1) For any secondary transmission to be subject to compulsory
27 licensing under subsection (c) , the cable system shall at least one month
28 before the date of the secondary transmission or within 30 days after
29 the enactment of this Act, whichever date is later, record in the Copy-
30 right Office, a notice including a statement of the identity and address
31 of the person who owns or operates the secondary transmission service
32 or has power to exercise primary control over it together with the
33 name and location of the primary transmitter, or primary transmit-
34 ters and thereafter, from time to time, such further information as the
35 Register of Copyrights shall prescribe by regulation to carry out the
36 jiurposes of this clause.
37 (2) A cable system whose secondary transmissions have been subject
38 to compulsory licensing under subsection (c) shall, during the months
39 of January, April, July, and October, deposit with the Register of
18
16
1 Copyrights, in accordance with requirements that the Register shall
2 prescribe by regulation —
3 (A-) A statement of account, covering the tliree months next
4 preceding, specifying the number of channels on which the cable
5 system made secondary transmissions to its subscribers, the names
6 and locations of all primary transmitters whose transmissions
7 were further transmitted by the cable system, the total number
8 of subscribers to the cable system, and the gross amounts paid to
9 the cable system irrespective of soiu-ce and separate statements of
10 the gross revenues paid to the cable system for advertising, leased
11 channels, and cable-casting for which a jier-program or per-
12 channel charge is made and by subscribers for the basic service of
13 providing secondary transmissions of primary broadcast trans-
it mitters ; and
15 (B) A total royalty fee for the period covered by the state-
ly ment, computed on the basis of specified percentages of the gross
l*"^ receipts from subscribers to the cable service during said period
18 for the basic service of providing secondary transmissions of
19 primary broadcast transmitters, as follows :
20 (i) i/o percent of any gross receipts up to $40,000 ;
21 (ii) 1 percent of any gross receipts totalling more than
22 $40,000 but not more than $80,000 ;
(iii) 11/2 percent of any gross receipts totalling more than
23
29
30
24 $80,000, but not more than $120.000 ;
25 (iv) 2 percent of any gross receipts totalling more than
26 $120,000. but not more than $160,000; and
27 (v) 214 percent of any gross receipts totalling more than
28 $160,000.
(3) The royalty fees thus deposited shall be distributed in accord-
ance with the following procedures :
•^1 (A) During the month of July in each year, every person claiming
3" to be entitled to compulsory license fees for secondary transmissions
33 made during the preceding twelve-month period shall file a claim
'^'* with the Register of Copyrights, in accordance with requirements that
^5 the Register shall prescribe by regulation. Xot withstanding any pro-
36 visions of the antitrust laws (the Act of Octobei' 15. 1914. 38 Stat. 730.
3' and any amendments of such laws), for purposes of this clause any
claimants may agree among themselves as to the proportionate divi-
sion of compulsory licensing fees among them, may lump their claims
38
39
19
17
1 together and file them jointly or as a single claim, or may designate
2 a common agent to receive payment on their behalf.
3 (B) After the first day of August of each year, the Register of
4 Copyrights shall determine whether there exists a controversy con-
5 ceming the statement of account or the distribution of royalty fees. If
6 he determines that no such controversy exists, he shall, after deduct-
7 ing his reasonable administrative costs under this section, distribute
8 such fees to the copyright owners entitled, or to their designated
^ agents. If he finds the existence of a controversy he shall certify to
10 that fact and proceed to constitute a panel of the Copyright Royalty
11 Tribunal in accordance with section 803. In such cases the reasonable
12 administrative costs of the Register under this section shall be de-
1^ ducted prior to distribution of the royalty fee by the tribunal.
1* (C) During the pendency of any proceeding under this subsection,
1^ the Register of Copyrights or the Copyright Royalty Tribunal shall
1" withhold from distribution an amount sufficient to satisfy all claims
1' with respect to which a controversy exists, but shall have discretion
1° to proceed to distribute any amounts that are not in controversy.
1^ (e) Definitions. —
As used in this section, the following terms and their variant forms
■^1 mean the following :
^^ A "primary transmission" is a transmission made to the public
2^ by the transmitting facility whose signals are being received and
further transmitted by the secondary transmission service, regard-
less of where or when the performance or display was first
transmitted.
25
26
2' A "secondary transmission" is the further transmitting of a
primary transmission simultaneously with the primary trans-
mission or nonsimultaneously with the primary transmission if by
a "cable system" not located in whole or in part within the bound-
^1 ary of the forty-eight contiguous States, Hawaii, or Puerto Rico :
Provided^ hoxoever. That a nonsimultaneous further transmission
by a cable system located in a television market in Hawaii of a
primary transmission shall be deemed to be a secondary trans-
mission if such further transmission is necessary to enable the
cable system to carry the full complement of signals allowed it
^' under the rules and regulations of the Federal Communciations
°'° Commission.
28
29
30
32
33
34
35
36
20
18
1 A "cable system" is a facility, located in any State, Territory,
2 Trust Territory or Possession that in whole or in part i-eceives
3 signals transmitted or programs broadcast by one or more tele-
4 vision broadcast stations licensed by the Federal Communications
5 Commission and makes secondary transmissions of such signals
6 or programs by wires, cables, or other communications channels
7 to subscribing members of the public who pay for such service.
8 For purposes of determining the royalty fee under subsection
9 (d) (2) (B), two or more cable systems in contiguous communi-
10 ties under common ownership or control or operating from one
11 headend shall be considered as one system.
12 The "local service area of a primary transmitter" comprises
13 the area in which a television broadcast station is entitled to
14 insist upon its signal being retransmitted by a cable system
15 pursuant to the rules and regulations of the Federal Communica-
16 tions Commission.
17 §112. Limitations on exclusive rights: Ephemeral recordings
18 (a) Notwithstanding the provisions of section 106, and except in the
19 case of a motion picture or other audiovisual work, it is not an
20 infringement of copyright for a transmitting organization entitled to
21 transmit to the public a performance or display of a work, under a
22 license or transfer of the copyright or under the limitations on exclu-
23 sive rights in sound recordings specified by section 114(a), to make
24 no more than one copy or phonorecord of a particular transmission
25 program embodying the performance or display, if —
26 (1) the copy or phonorecord is retained and used solely by the
27 transmitting organization that made it, and no further copies or
28 phonorecords are reproduced from it ; and
29 (2) the copy or phonorecord is used solely for the transmitting
30 organization's own transmissions within its local service area, or
31 for purposes of archival preservation or security ; and
32 (3) unless preserved exclusively for archival purposes, the copy
33 or phonorecord is destroyed within six months from the date the
34 transmission program was first transmitted to the public.
35 (b) Notwithstanding the provisions of section 106, it is not an in-
36 fringement of copyright for a governmental body or other nonprofit
37 organization entitled to transmit a performance or display of a work,
38 under section 110(2) or under the limitations on exclusive rights in
39 sound recordings specified by section 114(a), to make no more than
21
19
1 thirty copies or phonorecords of a particular transmission program
2 embodying the performance or display, if —
3 ( 1 ) no further copies or phonorecords are reproduced from the
4 copies or phonorecords made under this clause ; and
5 (2) except for one copy or phonorecord that may be preserved
6 exclusively for archival purposes, the copies or phonorecords are
7 destroyed within seven years from the date the transmission pro-
8 gram was first transmitted to the public.
9 (c) Notwithstanding the provisions of section 106, it is not an in-
10 fringement of copyright for a governmental body or other nonprofit
11 organization to make for distribution no more than one copy or phono-
12 record for each transmitting organization specified in clause (2) of this
13 subsection of a jjarticular transmission program embodying a perform-
14 ance of a nondramatic musical work of a religious nature, or of a sound
15 recording of such a musical work, if —
16 (1) there is no direct or indirect charge for making or dis-
17 tributing any such copies or phonorecords ; and
18 (2) none of such copies or phonorecords is used for any jDer-
19 formance other than a single transmission to the public by a trans-
20 mitting organization entitled to transmit to the public a perform-
21 ance of the work under a license or transfer of the copyright ; and
22 (3) except for one copy or plionorecord that may be preserved
23 exclusively for archival purposes, the copies or phonorecords are
24 all destroyed within one year from the date the transmission pro-
25 gram was first transmitted to the public.
26 (d) The transmission program embodied in a copy or phonorecord
27 made under this section is not subject to protection as a derivative
28 work under this title except Avith the express consent of the owners
29 of copyright in the pre-existing works employed in the program.
30 § 113. Scope of exclusive rights in pictorial, graphic, and sculp-
31 tural works
32 (a) Subject to the provisions of clauses (1) and (2) of this subsec-
33 tion, the exclusive right to reproduce a copyrighted pictorial, graphic,
34 or sculptural work in copies under section 106 includes the right to
35 reproduce the work in or on any kind of article, whether useful or
36 otherwise.
37 (1) This title does not afford, to the owner of copyright in a
38 Avork that portrays a useful article as such, any greater or lesser
39 rights with respect to the making, distribution, or display of the
40 useful article so portrayed than those afforded to such works
22
20
1 under the law, whether title 17 of the common law or statutes of
2 a State, in effect on December .'U. 1976. as held applicable and
3 construed by a court in an action brought under this title.
4 (2) In the case of a work lawfully reproduced in useful articles
5 that have been offered for sale or other distribution to the public,
6 copyright does not include any right to prevent the making, dis-
7 tribution, or display of pictures or photographs of such articles
8 in connection with advertisements or commentaries related to the
9 distribution or display of such articles, or in connectioi with news
10 reports.
11 (b) When a pictorial, graphic, or sculptural work in which copy-
12 right subsists under this title is utilized in an original ornamental
13 design of a useful article, by the copyright proprietor or under an
14 express license from him, the design shall be eligible for protection
15 under the provisions of title III of this Act.
16 (c) Protection under this title of a work in which copyright subsists
17 shall terminate with respect to its utilization in useful articles when-
18 ever the copyright proprietor has obtained registration of an orna-
19 mental design of a useful article embodying said work under the pro-
20 visions of title III of this Act. Unless and until the copyright pro-
21 prietor has obtained such registration, the copyright pictorial, graphic,
22 or sculptural work shall continue in all respects to be covered by and
23 subject to the protection afforded by the copyright subsisting under
24 this title. Nothing in this section shall be deemed to create any addi-
25 tional rights or protection under this title.
26 (d) Nothing in this section shall affect any right or remedy held
27 by any person under this title in a work in which copyright was sub-
28 sisting on the effective date of title II of this Act, or with respect to
29 any utilization of a copyrighted work other than in the design of a
30 useful article.
31 § 114. Scope of exclusive rights in sound recordings
32 (a) The exclusive rights of the owner of copyright in a sound record-
33 ing are limited to the rights specified by clauses (1) and (3) of sec-
34 tion 106, and do not include any right of performance under section
35 106(4).
36 (b) The exclusive riglit of the owner of copyright in a sound record-
37 ing to reproduce it under section 106(1) is limited to the right to
38 duplicate the sound recording in the form of plionorecords that directly
39 or indirectly recapture the actual sounds fixed in the recording. This
40 right does not extoiid to the making or duplication of anotlior soimd
23
21
1 recordinof that is an independent fixation of other sounds, even though
2 such sounds imitate or simulate those in the copyrighted sound
3 recording.
4 (c) This section does not limit or impair the exclusive right to per-
5 form publicly, by means of a phonorecord, any of the works specified
6 by section 106 (4).
7 §115. Scope of exclusive rights in nondramatic musical works:
8 Compulsory license for making and distributing phono-
9 records
10 In the case of nondramatic musical works, the exclusive rights pro-
11 vided by clauses (1) and (3) of section 106, to make and to distribute
12 phonorecords of such works, are subject to compulsory licensing under
13 the conditions specified by this section.
14 (a) Availability and Scope of Compulsory License. —
15 (1) When nhonorecords of a nondramatic musical work have
16 been distributed to the public under the authority of the copyright
17 owner, any other person may, by complying with the provisions
18 of this section, obtain a compulsory license to make and distribute
19 phonorecords of the work. A person may obtain a compulsory
20 license only if his primary purpose in making phonorecords is to
21 distribute them to the public for private use. A person may not
22 obtain a compulsory license for use of the work in the duplication
23 of a sound recording made by another.
24 (2) A compulsory license includes the privilege of making a
25 musical arrangement of the work to the extent necessary to con-
26 form it to the style or manner of interpretation of the perform-
27 ance involved, but the arrangement shall not change the basic
28 melody or fundamental character of the work, and shall not be
2^ subject to protection as a derivative work under this title, except
30 with the express consent of the copyright owner.
31 (b) Notice of Intention to Obtain Comptjlsory License ; Desig-
32 nation of Owner of Performance Right. —
33 (1) Any pei-son who wishes to obtain a compulsory license
under this section shall, before or within thirty days after making,
34
35 and before distributing any phonorecords of the work, serve notice
36 of his intention to do so on the copyright owner. If the registra-
37 tion or other public records of the Copyright Office do not identify
38 the copyright owner and include an address at which notice can
3^ be served on him, it shall be sufficient to file the notice of intention
^ in the Copyright Office. The notice shall comply, in form, con-
32
33
24
22
1 tent, and manner of service, with requirements that the Eegister
2 of Copyrights shall prescribe by regulation.
3 (2) If the copyright owner so requests in writing not later than
4 ten days after service or filing of the notice required by clause ( 1 ) ,
5 the person exercising the compulsory license shall designate, on
6 a label or container accompanying each phonorecord of the work
7 distributed by him, and in the form and manner that the Eegister
8 of Copyrights shall prescribe by regulation, the name of the
9 copyright owner or his agent to whom royalties for public per-
10 formance of the work are to be paid.
11 • (3) Failure to serve or file the notice required by clause (1), or
12 to designate the name of the owner or agent as required by clause
13 (2), forecloses the possibility of a compulsory license and, in the
14 absence of a negotiated license, renders the making and distribu-
15 tion of phonorecords actionable as acts of infringement under
16 section 501 and fully subject to the remedies provided by sections
17 502 through 506.
18 (c) RoTALTT Payable Under Compulsory License. —
19 (1) To be entitled to receive royalties under a compulsory
20 license, the copyright owner must be identified in the registration
21 or other public records of the Copyright Office. The owner is
22 entitled to royalties for phonorecords manufactured and distrib-
23 uted after he is so identified but he is not entitled to recover for
24 any phonorecords previously manufactured and distributed.
25 (2) Except as provided by clause (1), the royalty under a
26 compulsory license shall be payable for every phonorecord manu-
27 factured and distributed in accordance with the license. With
28 respect to each work embodied in the phonorecord, the royalty
29 shall be either three cents, or three quarter cent per minute of
30 playing time or fraction thereof, whichever amount is larger.
31 (3) Royalty payments shall be made on or before the twentieth
day of each month and shall include all royalties for the month
next preceding. Each monthly payment shall be accompanied
"^ by a detailed statement of account, which shall be certified by a
35 Certified Public Accountant and comply in form, content, and
36 manner of certification with I'equirements that the Register of
37 Copyrights shall prescribe by regulation.
(4) If the copyright owner does not receive the monthly pay-
ment and statement of account when due, he may give written
40 notice to the licensee that, unless the default is remedied within
38
39
25
23
1 thirty daj's from the date of the notice, the compulsory license
2 will be automatically terminated. Such termination renders the
3 making and distribution of all phonorecords, for wliich the roy-
4 alty had not been paid, actionable as acts of infringement under
5 section 501 and fully subject to the remedies provided by sections
6 502 through 506.
7 §116. Scope of exclusive rights in nondramatic musical works:
8 Public performances by means of coin-operated phono-
9 record players
10 (a) Limitation on Exclusive Right. — In the case of a non-
11 dramatic musical work embodied in a phonorecord, the exclusive right
12 under clause (4) of section 106 to perform the work publicly by means
13 of a coin-operated phonorecord player is limited as follows:
14 (1) The proprietor of the establishment in which the public
15 performance takes place is not liable for infringement with re-
16 spect to such public performance unless :
17 (A) he is the operator of the phonorecord player ; or
18 (B) he refuses or fails, within one month after receipt by
19 registered or certified mail of a request, at a time during
20 which the certificate is required by subclause (1) (C) of sub-
21 section (b) is not affixed to the phonorecord player, by the
22 copyright owner, to make full disclosure, by registered or
23 certified mail, of the identity of the operator of the phono-
24 record player.
25 (2) The operator of the coin-operated phonorecord player may
26 obtain a compulsory license to perform the work publicly on that
27 phonorecord player by filing the application, affixing the certifi-
28 cate, and paying the royalties provided by subsection (b).
29 (b) Recordation of Coin-Operated Phonorecord Player, Affixa-
30 tion of Certificate, and Royalty Payable Under Compulsory
31 License. —
(1) Any operator who wishes to obtain a compulsory license
for the- public performance of works on a coin-operated phono-
34 record player shall fulfill the following requirements:
35 (A) Before or within one month after such performances
are made available on a particular phonorecord player, and
32
33
36
3' during the month of January in each succeeding year that
3^ such performances are made availal)le in that particular
39 phonorecord player, he shall file in the Copyright Office, in
^^ accordance with requirements that the Register of Copyrights
cT-Toc r-\ _ nc
26
24
1 shall prescribe by regulation, an application containing the
2 name and address of the operator of the phonorecord player
3 and the manufacturer and serial number or other explicit
4 identification of the phonorecord player, and in addition to
5 the fee prescribed by clause (9) of section T08(a), he shall
6 deposit with the Register of Copyrights a royalty fee for
7 the current calendar year of $8 for that particular phono-
8 record player. If such performances are made available on a
9 particular phonorecord player for the first time after July 1
10 of any year, the royalty fee to be deposited for the remainder
11 of that year shall be $4.00.
12 (B) Within twenty days of receipt of an application and a
13 royalty fee pursuant to subclause ( A) , the Register of Copy-
14 rights shall issue to the applicant a certificate for the phono-
15 record player.
16 (C) On or before March 1 of the year in which the certifi-
17 cate prescribed by subclause (B) of this clause is issued, or
18 within ten days after the date of issue of the certificate, the
19 operator shall affix to the particular phonorecord player, in a
20 position where it can be readily examined by the public, the
21 certificate, issued by the Register of Copyrights under sub-
22 clause (B), of the latest application made by him under sub-
23 clause (A) of tins clause with respect to that phonorecord
24 player.
25 (2) Failure to file the application, to affix the certificate or to
26 pay the royalty required by clause (1) of this subsection renders
27 the public performance actionable as an act of infringement under
28 section 501 and fully subject to the remedies provided by section
29 502 through 506.
30 (c) Distribution OF RoYAi/TTES. —
31 (1) During the month of January in each year, every pei-son
32 claiming to be entitled to compulsory license fees under this section
33 for performances during the preceding twelve-month period shall
34 file a claim with the Register of Copyrights, in accordance with
35 requirements that the Register shall prescribe by regidation.
36 Such claim shall include an agreement to accept as final, except as
37 provided in section 809 of this title, the determination of the Copy-
38 right Royalty Tribunal in any controversy concerning the distri-
39 bution of royalty fees deposited under subclause (a) of subsec-
40 tion (b) (1) of this section to which the claimant is a party. Not-
27
25
1 withstanding any provisions of the antitrust laws (the Act of
2 October 15, 1914, 38 Stat. 730, and any amendments of any such
3 laws), for purposes of this subsection any claimants may agree
4 among themselves as to the proportionate division of compulsory
5 licensing fees among them, may lump their claims together and
6 file them jointly or as a single claim, or many designate a common
7 agent to receive payment on their behalf.
8 (2) After the first day of October of each year, the Register of
9 Copyrights shall determine whether there exists a controversy
10 concerning the distribution of royalty fees deposited under sub-
11 clause (A) of subsection (b) (1). If he determines that no such
12 controversy exists, he shall, after deducting his reasonable ad-
13 ministrative costs under this section, distribute such fees to the
14 copyright owners and performers entitled, or to their designated
15 agents. If he finds that such a controversy exists, he shall certify
16 to that fact and proceed to constitute a panel of the Copyright
17 Royalty Tribunal in accordance with section 803. In sucli cases the
18 reasonable administrative costs of the Register under this section
19 shall be deducted prior to distribution of the royalty fee by the
20 tribunal.
21 (3) The fees to be distributed shall be divided as follows:
22 (A) To every copyright owner not affiliated with a jserform-
23 ing rights society the pro rata share of the fees to be dis-
24 tributed to which such copyright owner proves liis entitle-
25 ment; and
26 (B) To the performing rights societies the remainder of
27 the fees to be distributed in such pro rata shares as they shall
28 by agreement stipulate among themselves, or, if they fail to
29 agree, the pro rata share to which such performing rights
30 societies prove their entitlement.
31 (C) During the pendency of any proceeding under this
32 section, tlie Register of Copyrights or the Copyright Royalty
33 Tribunal shall withhold from distribution an amount suffi-
34 cient to satisfy all claims with respect to which a controversy
35 exists, but shall have discretion to proceed to distribute any
36 amounts that are not in controversy.
37 (4) The Register of Copyrights sliall promulgate regulations
38 under which persons who can reasonably be expected to have
39 claims may, during the year in which performances take place,
40 without expense to or harassment of operators or proprietors of
28
26
1 establishments in which phonorecord players are located, have
2 such access to such establishments and to the phonorecord players
3 located therein and such opportunity to obtain information with
4 respect thereto as may be reasonably necessary to determine, by
5 sampling procedures or otherwise, the proportion of contribution
6 of the musical works of each such person to the earnings of the
7 phonorecord players for which fees shall have been deposited.
8 Any person who alleges that he has been denied the access per-
9 mitted under the regulations prescribed by the Register of Copy-
10 rights may bring on an action in the United States District Court
11 for the District of Columbia for the cancellation of the compul-
12 sory license of the phonorecord player to which such access has
13 been denied, and the court shall have the power to declare the
14 compulsory license thereof invalid from the date of issue thereof.
15 (d) Criminal Penalties. — Any person who knowingly makes a
16 false representation of a material fact in an application filed under
17 clause (1) (A) of subsection (b), or who knowingly alters a certificate
18 issued under clause (1)(B) of subsection (b) or knowingly affixes
19 such a certificate to a phonorecord player other than the one it covers,
20 shall be fined not more than $2,500.
21 (e) Definitions. — As used in this section, the following tenns and
22 their variant forms mean the following :
23 (1) A "coin-operated phonorecord player" is a machine or
24 device that:
25 (A) is employed solely for the performance of non-
26 dramatic musical works by means of phonorecords upon being
27 activated by insertion of a coin ;
28 (B) is located in an establishment making no dii-ect or
29 indirect charge for admission ;
30 (C) is accompanied by a list of the titles of all the musical
31 works available for performance on it, which list is affixed to
32 the phonorecord player or posted in the establishment in a
33 prominent position where it can be readily examined by the
34 public; and
35 (D) affords a choice of works available for performance
36 and permits the choice to be made by the patrons of the
37 establishment in which it is located.
38 (2) An "operator" is any person who, alone or jointly with
39 others :
40 (A) owns a coin-operated phonorecord player ; or
29
27
1 (B) has the power to make a coin-operated phonorecord
2 player available for placement in an establishment for pur-
3 poses of public performance ; or
4 (C) has the power to exercise primary control over the
5 selection of the musical works made available for public
6 performance in a coin-operated phonorecord player.
7 (3) A "performing rights society" is an association or corpora-
8 tion that licenses the public performance of nondramatic nmsical
9 works on behalf of the copyright owners, such as the American
10 Society of Composers, Authors and Publishers, Broadcast Music,
11 Inc., and SESAC, Inc.
12 §117. Scope of exclusive rights: Use in conjunction with com-
13 puters and similar information systems
14 Notwithstanding the provisions of sections 106 through 116, this
15 title does not afford to the owner of copyright in a work any greater
16 or lesser rights with respect to the use of the work in conjunction with
17 automatic systems capable of storing, processing, retrieving, or trans-
18 ferring information, or in conjunction with any similar device, ma-
19 chine, or process, than those afforded to works under the law, whether
20 title 17 or the common law or statutes of a State, in effect on Decem-
21 ber 31, 1976, as held applicable and construed by a court in an action
22 brought under this title.
23 Chapter 2.— COPYRIGHT OWNERSHIP AND TRANSFER
See.
201. Ownership of copyright.
202. Ownership of copyright as distinct from ownership of material object.
203. Termination of transfers and licenses granted by the author.
204. Execution of transfers of copyright ownership.
205. Recordation of transfers and other documents.
24 § 201. Ownership of copyright
25 (a) Initial Ownership. — Copyright in work protected under this
26 title vests initially in the author or authors of the work. The authors
27 of a joint work are co-ownei*s of copyright in the work.
28 (b) Works Made for HrRE. — In tlie case of a work made for hire,
29 the employer or other persons for whom the work was prepared is
30 considered the author for purposes of this title, and, unless the parties
31 have expressly agreed otherwise in a written instrument signed by
32 them, owns all of the rights comprised in the copyright.
33 (c) Contributions TO Collective Works. — Copyright in each sep-
34 arate contribution to a collective work is distinct from copyright in
35 the collective work as a whole, and vests initially in the author of the
36 contribution. In the absence of an express transfer of the copyright
30
28
1 or of any rights under it, the owner of copyright in the collective
2 work is presumed to have acquired only the privilege of reproducing
3 and distributing the contribution as part of that particular collective
4 work, any revision of that collective work, and any later collective
5 work in the same series.
6 (d) Transfer OF Ownership. —
7 (1) The ownership of a copyright may be transferred in whole
8 or in part by any means of conveyance or by operation of law, and
9 may be bequeathed by will or pass as personal property by the
10 applicable laws of intestate succession.
11 (2) Any of the exclusive rights comprised in a copyright,
12 including any subdivision of any of the rights specified by section
13 106, may be transferred as provided by clause ( 1 ) and owned sepa-
ls rately. The owner of any particular exclusive right is entitled, to
15 the extent of that right, to all of the protection and remedies
16 accorded to the copyright owner by this title.
17 § 202. Ownership of copyright as distinct from ownership of
18 material object
19 Ownership of a copyright, or of any of the exclusive rights under
20 a copyright, is distinct from ownership of any material object in
21 which the work is embodied. Transfer of ownership of any material
22 object, including the copy or phonorecord in which the work is first
23 fixed, does not of itself convey any rights in the copyrighted work
24 embodied in the object; nor, in the absence of an agreement, does
25 transfer of ownership of a copj^right or of any exclusive rights under
26 a copyright convey property rights in any material object.
27 § 203. Termination of transfers and licenses granted by the author
28 (a) Conditions for Termination. — In the case of any work other
29 than a work made for hire, the exclusive or nonexclusive grant of a
30 transfer or license of copyright or of any right under a copyright,
31 executed by the author on or after January 1, 1977, otherwise than
32 by will, is subject to termination under the following conditions :
33 (1) In the case of a grant executed by one author, termination
34 of the grant may be effected by that author or, if he is dead, by
35 the person or persons who, under clause (2) of this subsection,
36 own and are entitled to exercise a total of more than one half of
37 that author's termination interest. In the case of a grant executed
38 by two or more authors of a joint work, termination of the grant
39 may be effected by a majority of the authors who executed it;
40 if any of such authors is dead, his termination interest may be
31
29
1 exercised as a unit by the person or persons who, under clause (2)
2 of this subsection, own and are entitled to exercise a total of more
3 than one half of his interest.
4 (2) Where an author is dead, his or her termination interest is
5 owned, and may be exercised, by his widow (or her widower) and
6 children or grandchildren as follows :
7 (A) The widow (or widower) owns the author's entire ter-
8 mination interest unless there are any surviving children or
9 grandchildren of the author, in which case the widow (or
10 widower) owns one half of the author's interest;
11 (B) The author's surviving children, and the surviving
12 children of any dead child of the author, own the author's
13 entire termination interest unless there is a widow (or wid-
14 ower) , in which case the ownership of one half of the author's
15 interest is divided among them ;
16 (C) The rights of the author's children and grandchildren
17 are in all cases divided among them and exercised on a per
18 stirpes basis according to the number of his children repre-
19 sented ; the share of the children of a dead child in a termina-
20 tion interest can be exercised only by the action of a majority
21 of them.
22 ( 3 ) Termination of the grant may be effected at any time during
23 a period of five years beginning at the end of thirty -five years from
24 the date of execution of the grant ; or, if the grant covers the right
25 of publication of the work, the period begins at the end of thirty-
26 five years from the date of publication of the work under the grant
27 or at the end of forty years from the date of execution of the
28 grant, whichever term ends earlier.
29 (4) The termination shall be effected by serving an advance
30 notice in writing, signed by the number and proportion of owners
31 of termination interests required under clauses (1) and (2) of this
32 subsection, or by their duly authorized agents, upon the grantee
33 or his successor in title.
34 (A) The notice shall state the effective date of the t«rmina-
35 tion, which shall fall within the five-year period specified by
36 clause (3) of this subsection, and the notice shall be served
37 not less than two or more than ten years before that date. A
38 copy of the notice shall be recorded in the Copyright Office
39 before the effective date of termination, as a condition to its
40 taking effect.
32
30
1 (B) The notice shall comply, in form, content, and man-
2 ner of service, with requirements that the Register of Copy-
3 rights shall prescribe by regulation.
4 (5) Termination of the grant may be effected notwithstand-
5 ing any agreement to the contrary, including an agreement to
6 make a will or to make any future grant.
7 (b) Effect of Termination. — Upon the effective date of termina-
8 tion, all rights under this title that were covered by the terminated
9 grant revert to the author, authors, and other persons owning termi-
10 nation interests under clauses (1) and (2) of subsection (a), includ-
11 ing those owners who did not join in signing the notice of termination
12 under clause (4) of subsection (a) but, with the following limitations :
13 (1) -A- derivative work prepared under authority of the grant
14 before its termination may continue to be utilized under the terms
15 of the grant after its termination, but this privilege does not ex-
16 tend to the preparation after the termination of other derivative
17 works based upon the copyrighted work covered by the terminated
18 grant.
19 (2) The future rights that will revert upon termination of the
20 grant become vested on the date the notice of termination has
21 been served as provided by clause (4) of subsection (a). The
22 rights vest in the author, authors, and other persons named in,
23 and in the proportionate shares provided by, clauses (1) and (2)
24 of subsection (a).
25 (3) Subject to the provisions of clause (4) of this subsection,
26 a further grant, or agreement to make a further grant, of any
27 right covered by a terminated grant is valid only if it is signed
28 by the same number and proportion of the owners, in whom the
29 right has vested under clause (2) of this subsection, as are re-
30 quired to terminate the grant under clauses (1) and (2) of sub-
31 section (a). Such further grant or agreement is effective with
32 respect to all of the persons in whom the right it covers has vested
33 under clause (2) of this subsection, including those who did not
34: join in signing it. If any person dies after rights under a ter-
35 minated grant have vested in him, his legal representatives,
36 legatees, or heirs at law represent him for purposes of this clause.
37 (4) A further grant, or agreement to make a further grant, of
38 any right covered by a terminated grant is valid only if it is made
39 after the effective date of the termination. As an exception, how-
40 ever, an agreement for such a further grant may be made between
33
31
1 the persons provided by clause (3) of this subsection and the
2 original grantee or his successor in title, after the notice of termi-
3 nation has been served as provided by clause (4) of subsection (a) .
4 (5) Termination of a grant under this section affects only those
5 i-ights covered by the grant tluit arise under this title, and in no
6 way affects rights arising under any other Federal, State, or for-
7 eign laws.
8 (6) Unless and until termination is etl'ected under this section,
9 tlie grant, if it does not provide otherwise, contiiiues in effect for
10 the term of copyright provided by this title.
11 §204. Execution of transfers of copyright ownership
12 (a) A transfer of copyright ownership, other than by operation of
13 law, is not valid unless an instrument of conveyance, or a note or
14 memorandum of the transfer, is in writing and signed by the owner
15 of the rights conveyed or his duly authorized agent.
16 (b) A certificate of acknowledgement is not required for the valid-
17 ity of a transfer, but is prima facie evidence of the execution of the
18 transfer if:
19 (1) in the case of a transfer executed in the United States, the
20 certificate is issued by a person authorized to administer oaths
21 within the United States ; or
22 (2) in the case of a transfer executed in a foreign country, the
23 certificate is issued by a diplomatic or consular officer of the
24 United States, or by a person authorized to administer oaths
25 whose authority is proved by a certificate of such an officer.
26 § 205. Recordation of transfers and other documents
27 (a) CoxDiTioxs for Recordatiox. — Any transfer of copyright own-
28 ership or otlier document pertaining to a copyright may be recorded
29 in the Copyright Office if the document filed for recordation bears the
30 actual signature of the person who executed it, or if it is accompanied
31 by a sworn or official certification that it is a true copy of the original.
32 signed document.
33 (b) Certificate of Eecordatiox. — The Register of Copyrights
34 shall, upon receipt of a document as provided by subsection (a) and
35 of the fee provided by section 708, record the document and return it
36 with a certificate of recordation.
37 (c) Recordatiox as Cox'structive Notice. — Recordation of a docu-
38 ment in the Copyright Office gives all persons constructive notice of the
39 facts stated in the recorded document, but only if :
34
32
1 (1) the document, or material attached to it, specifically identi-
2 fies the work to which it pertains so that, after the document is
3 indexed by the Register of Copyrights, it would be revealed by a
4 reasonable search under the title or registration number of the
5 work ; and
6 (2) registration has been made for the work.
' (d) Recordation as Prerequisite to Infringement Suit. — No per-
° son claiming by virtue of a transfer to the owner of copyright or of
^ any exclusive right under a copyright is entitled to institute an in-
^^ fringement action under this title until the instrument of transfer
^^ under which he claims has been recorded in the Copyright Office, but
•'■^ suit may be instituted after such recordation on a cause of action that
^^ arose before recordation.
(e) Priority Between Conflicting Transfers. — As between two
^^ conflicting transfers, the one executed first prevails if it is recorded, in
the manner required to give constructive notice under subsection (c)
within one month after its execution in the United States or within two
1 Q
months after its execution abroad, or at any time before recordation in
such manner of the later transfer. Otherwise the later transfer prevails
if recorded first in such manner, and if taken in good faith, for valu-
able consideration or on the basis of a binding promise to pay royal-
ties, and without notice of the earlier transfer.
(f) Priority Between Conflicting Transfer of Ownership and
^ Nonexclusive License. — A nonexclusive license, whether recorded or
not, prevails over a conflicting transfer of copyright ownership if the
26 • • •
license is evidenced by a written instrument signed by the owner of the
rights licensed or his duly authorized agent, and if :
(1) the license was taken before execution of the transfer; or
(2) the license was taken in good faith before recordation of
the transfer and without notice of it.
Chapter 3.— DURATION OF COPYRIGHT
Sec. •
301. Pre-emption with respect to other laws.
302. Duration of oopyright : Works created on or after January 1, 1977.
30.3. Duration of copyright : Works created but not published or copyrighted
before .January 1, 1077.
304. Duration of copyright : Subsisting copyrights.
305. Duration of copyright : Terminal date.
32 § 301. Pre-emption with respect to other laws
33 (a) On and after Januat y 1. 107.7. all riirhts in the nature of cnpy-
34 right in works that como within tlie subject matter of copyright as
35 specified by sections 102 and 103, whether created before or after that
16
17
20
21
22
23
27
28
29
30
31
35
33
1 date and whether published or unpublished, are governed exclusively
2 by this title. Thereafter, no person is entitled to copyright, literary
3 property rights, or any equivalent legal or equitable right in any such
4 work under the common law or statutes of any State.
5 - (b) Nothing in this title annuls or limits any rights or remedies
6 under the common law or statutes of any State with respect to :
T ( 1 ) unpublished matei-ial that does not come within the subject
8 matter of copyright as specified by sections 102 and 103, including
9 works of authorship not fixed in any tangible medium of ex-
10 pression ;
11 (2) any cause of action arising from undertakings commenced
12 before January 1, 1977;
13 (3) activities violating rights that are not equivalent to any of
14 the exclusive rights within the general scope of copyright as speci-
15 fied by section 106, including breaches of contract, breaches of
16 trust, invasion of privacy, defamation, and deceptive trade prac-
1*^ tioes such as passing off and false representation.
18 §302. Duration of copyright: Works created on or after Janu-
19 ary 1, 1977
20 (a) In General. — Copyright in a woi'k created on or after January
21 1, 1977, subsists from its creation and. except as provided by the
22 following subsections, endures for a term consisting of the life of the
23 author and fifty years after his death.
24 (b) Joint Works. — In the case of a joint work prepared by two
25 or more authors who did not work for hire, the copyright endures for
26 a term consisting of the life of the last surviving author and fifty
27 years after his death.
28 (c) Anonymous Works, Pseudonymous Works, and Works Made
29 for Hire. — In the case of an anonymous work, a pseudonymous work
30 or a work made for hire, the copyright endures for a term of seventy-
31 five years from the year of its first publication, or a term of one
32 himdred years from the year of its creation, whichever expires first.
33 If, before the end of such term, the identity of one or more of the
34 authors of an anonymous or pseudonymous work is revealed in the
35 records of a registration made for that work under subsection (a)
36 or (d) of section 407, or in the records prov-ided by this subsection,
37 the copyright in the work endures for the term specified by subsections
38 (a) or (b), based on tlie life of the author or authors whose identity
39 has been i-evealed. Any person having an intei"est in the copyright in
40 an anonymous or pseudonymous work may at any time record, in
36
34
1 records to be maintained by the Copyright Office for that purpose, a
2 statement identifying one or more authors of the work ; the statement
3 shall also identify the person filing it, the nature of his interest, the
4 source of his information, and the particular work affected, and shall
5 comply in form and content witli requirements that the Register of
6 Copyrights shall prescribe by regulation.
7 (d) Records Relating to Death of Authobs. — Any person having
8 an interest in a copyright may at any time record in the Copyright
9 Office a statement of the date of death of the author of the copy-
10 righted work, or a statement that the author is still living on a par-
11 ticular date. The statement shall identify the pereon filing it, the
12 nature of his interest, and the source of his information, and shall
13 comply in form and content with requirements that the Register
14 of Copyrights shall prescribe by regulation. The Register shall main-
15 tain current records of information relating to the death of authors
16 of copyrighted works, based on such recorded statements and, to the
17 extent he considers practicable, on data contained in any of the records
18 of the Copyright Office or in other reference sources.
19 (e) Presumption as to Author's Death. — After a period of seventy-
20 five years from the year of first publication of a work, or a period
21 of one hundred years from the year of its creation, whichever expires
22 first, any person who obtains from the Copyright Office a certified re-
23 port that the records provided by subsection (d) disclose nothing to
24 indicate that the author of the work is living, or died less than fifty
25 years before, is entitled to the benefit of a presumption that the author
26 has been dead for at least fifty years. Reliance in good faith upon this
27 presumption shall be a complete defense to any action for infringe-
28 ment under this title.
29 § 303. Duration of copyright . Works created but not published
30 or copyrighted before January 1, 1977
31 Copyright in a work created before January 1, 1977, but not thereto-
32 fore in the public domain or copyrighted, subsists from January 1,
33 1977, and endures for the term provided by section 302. In no case,
34 however, shall the term of copyright in such a work expire before
December 31, 2001 ; and, if the work is published on or before December
31, 2001, the term of copyright shall not expire before December 31,
35
36
37 2026.
38 § 304. Duration of copyright: Subsisting copyrights
39 (a) Copyrights in Their First Term on January 1, 1977. — Any
40 copyright, the first term of which is subsisting on January 1, 1977,
37
35
1 shall endure for twenty-eight years from the date it was originally
2 secured : Provided. That in the case of any posthumous work or of any
3 periodical, cyclopedic, or other composite work upon wliich the copy-
4 right was originally secured by the proprietor thereof, or of any work
5 copyrighted by a corporate body (otherwise than as assignee or li-
6 c*nsee of the individual author) or by an employer for whom such
7 work is made for hire, the proprietor of such copyright shall be en-
8 titled to a renewal and extension of the copyright in such work for the
9 further term of forty-seven years when application for such renewal
10 and extension shall have been made to the Copyriglit Office and duly
11 registered therein within one year prior to the expiration of the origi-
12 ual term of copyriglit : And pi'ovided further. That in the case of any
13 other copyrighted work, including a contribution by an individual
14: author to a periodical or to a cyclopedic or other composite work, the
15 author of such work, if still living, or the widow, widower, or children
16 of the author, if the author be not living, or if such author, widow,
1' widower, or children be not living, then the author's executore, or in
18 the absence of a will, his next of kin shall be entitled to a renewal and
19 extension of the copyright in such work for a further term of forty-
20 seven years when application for such renewal and extension shall
21 have been made to the Copyright Office and duly registered therein
22 within one year prior to the expiration of the original term of copy-
23 right : Aiul provided further. That in default of tlie registration of
24 such application for renewal and extension, the copyright in any work
25 shall terminate at the expiration of twenty-eight years from the date
26 copyright was originally secured.
27 (b) Copyrights in Their Renewal. Term or Registered for Re-
28 newal Before January 1, 1977. — The duration of any copyright, the
29 renewal term of whicli is subsisting at any time between December 31,
30 1975, and December 31, 197G. inclusive, or for which renewal registra-
31 tion is made between December 31, 1975, and December 31. 1976,
32 inclusive, is extended to endure for a term of 75 years from the date
33 copyright was originally secured.
34 (c) Termination of Transfers and Licenses Covering Extended
35 Renewal Term. — In the case of any copyright subsisting in either
36 its first or renewal term on January 1. 1977. other than a copyright
37 in a work made for liire, the exclusive or nonexclusive grant of a trans-
38 fer or license of the renewal copyright or of any right under it,
39 executed before January 1, 1977, by any of the persons designated by
38
36
1 the second proviso of subsection (a) of this section, otherwise than by
2 will, is subject to termination under the following condition :
3 ( 1 ) In the case of a grant executed by a person or persons other
4 than the author, termination of the grant may be effected by the
5 surviving person or persons who executed it. In the case of a
6 grant executed by one or more of the authors of the work, termina-
7 tion of the grant may be effected, to the extent of a particular
8 author's share in the ownership of the renewal copyright, by the
9 author who executed it or, if such author is dead, by the person or
10 persons who, under clause (2) of this subsection, own and are
11 entitled to exercise a total of more than one half of that author's
12 termination interest.
13 (2) Where an author is dead, his or her termination interest is
14 owned, and may be exercised, by his widow (or her widower) and
15 children or grandchildren as follows :
1" (A) The widow (or widower) owns the author's entire
1' termination interest unless there are any surviving children
1° or grandchildren of the author, in which case the widow (or
19 widower) owns one half of the author's interest;
^ (B) The author's surviving children, and the surviving
21 children of any dead child of the author, own the author's
22 entire termination interest unless there is a widow (or wid-
23 ower) , in which case the ownership of one half of the author's
24 interest is divided among them ;
25 (C) The rights of the author's children and grandchildren
26 are in all cases divided among them and exercised on a per
27 stirpes basis according to tlie number of his children repre-
28 sented ; the share of the children of a dead child in a termina-
ls tion interest can be exercised only by the action of a major-
30 ity of them.
"1 (3) Termination of the grant may be effected at any time dur-
ing a period of five years beginning at the end of fifty-six years
form the date copyright was originally secured, or beginning on
January 1, 1977, whichever is later.
(4) The termination shall be effected by serving an advance
notice in writing upon the grantee or his successor in title. In the
case of a gi-ant executed by a person or persons other than the
author, the notice shall be signed by all of those entitled to termi-
nate the grant under clause (1) of this subsection, or by their duly
authorized agents. In the case of a grant executed by one or more
32
33
34
35
36
37
38
39
40
39
37
1 of the authors of the work, the notice as to any one author's share
2 shall be signed by him or his duly authorized agent or, if he is
3 dead, by the number and proportion of the owners of his termina-
4 tion interest required under clauses (1) and (2) of this subsection,
5 or by their duly authorized agents.
6 (A) The notice shall state the eflfective date of the termi-
7 nation, which shall fall within the five-year period specified
8 by clause (3) of this subsection, and the notice shall be served
9 not less than two or more than ten years before that date. A
10 copy of the notice shall be recorded in the Copyright Office
11 before the effective date of termination, as a condition to its
12 taking effect.
13 (B) The notice shall comply, in foi-m, content, and manner
14 of service, with requirements that the Register of Copyrights
15 shall prescribe by regulation.
16 (5) Termination of the grant may be effected notwithstanding
17 any agreement to the contrary, including an agreement to make
18 a will or to make any future grant.
19 (6) In the case of a grant executed by a person or persons other
20 than the author, all rights under this title that were covered by
21 the terminated grant revert, upon the effective date of termination,
22 to all of those entitled to terminate the grant under clause (1) of
23 this subsection. In the case of a grant executed by one or more
24 of the authors of the work, all of a particular author's rights
25 under this title that were covered by the terminated grant revert,
26 upon the effective date of termination, to that author or, if he is
27 dead, to the persons owning his termination interest under clause
28 (2) of this subsection, including those owners who did not join
29 in signing the notice of termination under clause (4) of this sub-
30 section. In all cases the reversion of rights is subject to the follow-
31 ing limitations :
32 (A) A derivative work prepared under authority of the
33 grant before its termination may continue to be utilized under
34 the terms of the grant after its termination, but this privilege
35 does not extend to the preparation after the t-ermination of
36 other derivative works based upon the copyrighted work cov-
37 ered by the terminated grant.
38 (B) The future rights that will revert upon termination
39 of the trrant become vested on the date the notice of termi-
40
38
10
^ nation has been served as provided by clause (4) of this
^ subsection.
^ (C) Where an author's rights revert to two or more per-
* sons under clause (2) of. this subsection, they shall vest in
^ those persons in the proportionate shares provided by that
^ clause. In such a case, and subject to the provisions of sub-
• clause (D) of this clause, a further grant, or agreement to
° make a further grant, of a particular author's share with
^ respect to any right covered by a terminated grant is valid
only if it is signed by the same number and proportion of
11 the owners, in whom the right has vested under this clause,
12 as are required to terminate the grant under clause (2) of
13 this subsection. Such further grant or agreement is effective
14 with respect to all of the persons in whom the right it
15 covers has vested under this subclause, including those who
16 did not join in signing it. If any person dies after rights
17 under a terminated grant have vested in him, his legal repre-
18 sentatives, legatees, or heirs at law represent him for purposes
19 of this subclass.
20 (D) A further grant, or agreement to make a further
21 grant, of any right covered by a terminated grant is valid
22 only if it is made after the effective date of the termination.
23 As an exception, however, an agreement for such a further
24 grant may be made between the author or any of the per-
25 sons provided by the first sentence of clause (6) of this
26 subsection, or between the persons provided by subclause
27 (C) of this clause, and the original grantee or his successor
28 in title, after the notice of termination has been served as
29 provided by clause (4) of this subsection.
30 (E) Termination of a grant under this subsection affects
31 only those rights covered by the grant that arise under this
32 title, and in no way affects rights arising under any other
33 Federal,State, or foreign laws.
34 (F) Unless and until termination is effected under this
35 section, the grant, if it does not provide otherwise, continues
36 in effect for the remainder of the extended renewal term.
37 § 305. Duration of copyright : Terminal date
38 All terms of copyright provided by sections 302 through 304 run to
39 the end of the calendar year in which they would otherwise expire.
41
39
1 Chapter 4.— COPYRIGHT NOTICE, DEPOSIT, AND
2 REGISTRATION
Sec.
401. Notice of copyright : Visually perceptible copies.
402. Notice of copyright : Phonorecords of sound recordings.
403. Notice of copyright : Publications incorporating United States Government
works.
404. Notice of copyright : Contributions to collective works.
405. Notice of copyright : Omission of notice.
406. Notice of copyright : Error in name or date.
407. Deposit of copies or phonorecords for Library of Congress.
408. Copyright registration in general.
409. Application for registration.
410. Registration of claim and Issuance of certificate.
411. Registration as prerequisite to infringement suit.
412. Registratiou as prerequisite to certain remedies for infringement.
3 § 401. Notice of copyright : Visually perceptible copies
4 (a) General Requirement. — ^Whenever a -work protected under
5 this title is published in the United States or elsewhere by authority
6 of the copyright owner, a notice of copyright as provided by this sec-
7 tion shall be placed on all publicly distributed copies from which the
8 work can be visually perceived, either directly or with the aid of a
9 machine or device.
10 (b) Form of Notice. — The notice appearing on the copies shall con-
11 sist of the following three elements :
12 (1) the symbol © (the letter C in a circle), the word "Copy-
13 right," or the abbreviation "Copr.'' ;
14 (2) the year of first publication of the work: in the case of
15 compilations or derivative works incorporating previously pub-
16 lished material, the year date of first publication of the compila-
17 tion or derivative work is sufficient. The year date may be omitted
18 where a j^ictorial, graphic, or sculptural work, with accompanying
19 text matter, if any. is reproduced in or on greeting cards, post-
20 cards, stationery, jewelry, dolls, toys, or any useful articles ;
21 (3) the name of the owner of copyright in the work, or an ab-
22 breviation by which the name can be recognized, or a generally
23 known alternative designation of the owner.
24 (c) Position of Notice. — The notice shall be affixed to the copies in
25 such manner and location as to give reasonable notice of the claim
26 of copyright. The Register of Copyrights shall prescribe by regula-
27 tion, as examples, specific methods of affixation and positions of the
28 notice on various types of woi-ks that will satisfy this requirement, but
29 these specifications shall not be considered exhaustive.
30 §402. Notice of copyright : Phonorecords of sound recordings
31 (a) General Requirejlext. — Whenever a sound recording pro-
c;7_'7QC r^
42
40
1 tected under this title is published in the United States or elsewhere by
2 authority of the copyright owner, a notice of copyright as provided
3 by this section shall be placed on all publicly distributed phonorecords
4 of the sound recording.
5 (b) Form of Notice. — The notice appearing on tlie phonorecords
6 shall consist of the following three elements :
7 (1) the symbol ® (the letter P in a circle) ;
8 (2) the year of first publication of the sound recording ;
9 (3) the name of the owner of copyrights in the sound record-
10 ing, or an abbreviation by which the name can be recognized, or a
11 generally known alternative designation of the owner; if the
12 producer of the sound recording is named on the phonorecord
13 labels or containers, and if no other name appears in conjunction
14 with the notice, his name shall be considered a part of the notice.
15 (c) Position of Notice. — The notice shall be placed on the surface
16 of the phonorecord, or on the phonorecord label or container.- in such
17 manner and location as to give reasonable notice of the claim of copy-
18 right.
19 §403. Notice of copyright: Publications incorporating United
20 State Government works
21 Whenever a work is published in copies or phonorecords consisting
22 preponderantly of one or more works of the United States Govern-
23 ment, the notice of copyright provided by section 401 or 402 shall
24 also include a statement identifying, either affirmatively or negatively,
25 those portions of the copies or phonorecords embodying any work or
26 works protected under this title.
27 §404. Notice of copyright: Contributions to collective works
28 (a) A separate contribution to a collective work may bear its own
29 notice of copyright, as provided by section 401 througli 403. How-
30 ever, a single notice applicable to the collective work as a whole is
31 sufficient to satisfy the requirements of sections 401 through 403 with
32 respect to the separate contributions it contains (not including adver-
33 tisements inserted on behalf of persons other than the owner of copy-
34 right in the collective work) , regardless of the ownership of copyright
35 in the contributions and whether or not they have been previously
36 published.
37 (b) Where the person named in a single notice applicable to a
38 collective work as a whole is not the owner of copyright in a separate
39 contribution that does not bear its own notice, the case is governed
40 by the provisions of section 406(a).
43
41
1 § 405. Notice of copyright : Omission of notice
2 (a) Effectt of Omission on Copyright. — The omission of the copy-
3 right notice described by sections 401 through 408 from copies or
4 phonorecords publicly distributed by authority of the copyright
5 owner does not invalidate the copyright in a work if :
6 (1) the notice has been omitted from no more than a relatively
7 small number of copies or phonorecords distributed to the public ;
8 or
9 (2) registration for the work has been made before or is made
10 within five years after the publication without notice, and a
11 reasonable effort is made to add notice to all copies or phono-
12 records that are distributed to the public in the United States
13 after the omission has been discovered; or
14 (3) the notice has been omitted in violation of an express re-
15 quirement in writing that, as a condition of the copyright owner's
16 authorization of the public distribution of copies or phonorecords,
17 they bear the prescribed notice.
18 (b) Effect of Omission on Innocent Infringers. — Any person
19 who innocently infringes a copyright, in reliance upon an authorized
20 copy or phonorecord from which the copyright notice has been
21 omitted, incurs no liability for actual or statutory damages under sec-
22 tion 504 for any infringing acts committed before receiving actual
23 notice that registration for the work has been made under section 408,
^ if he proves that he was misled by the omission of notice. In a suit
25 for infringement in such a case the court may allow or disallow re-
26 covery of any of the infringer's profits attributable to the infringe-
27 ment, and may enjoin the continuation of the infringing undertaking
28 or may require, as a condition for permitting the infringer to con-
29 tinue his undertaking, that he pay the copyright owner a reason-
30 able license fee in an amount and on terms fixed by the court.
31 (c) Removal of Notice. — Protection under this title is not affected
32 by the removal, destruction, or obliteration of the notice, without
33 the authorization of the copyright owner, from any publicly distrib-
34 uted copies or phonorecords.
35 §406. Notice of copyright: Error in name or date
36 (a) Error in Name. — Where the person named in the copyright
37 notice on copies or phonorecords publicly distributed by authority of
38 the copyright owner is not the owner of copyright, the validity and
39 ownership of the copyright are not affected. In such a case, however.
40 any person who innocently begins an undertaking that infringes the
44
42
1 copyright has a complete defense to any action for such infringement
2 if he proves that he was misled by the notice and began the undertak-
3 ing in good faith under a purported transfer or license from the person
4 named therein, unless before the undertaking was begun :
5 (1) registration for the work had been made in the name of
6 the owner of copyright ; or
7 (2) a document executed by the person named in the notice
8 and showing the ownership of the copyright had been recorded.
& The person named in the notice is liable to account to the copyright
10 owner for all receipts from purported transfei'S or licenses made by
11 him under the copyright.
12 (b) Error in Date. — When the year date in the notice on copies or
13 phonorecords distributed by authority of the copyright owner is
14 earlier than the year in which publication first occurred, any period
15 computed from the year of first publication under section 302 is to be
16 computed from the year in the notice. Where the year date is more
17 than one year later than the year in which publication first occurred,
18 the work is considered to have been published without any notice and
19 is governed by the provisions of section 405.
20 (c) Omission of Name or Date. — Where copies or phonorecords
21 publicly distributed by authority of tlie copyright owner contain no
22 name or no date that could reasonably be considered a part of the
23 notice, the work is considered to have been published witliout any
24 notice and is governed by the provisions of section 405.
25 § 407. Deposit of copies or phonorecords for Library of Congress
26 (a) Except as provided by subsection (c), the owner of copyright
27 or of the exclusive right of publication in a work published with no-
28 tice of copyright in the United States shall deposit, within three
29 months after the date of such publication :
30 ( 1 ) two complete copies of the best edition ; or
31 (2) if the work is a sound recording, two complete phono-
32 i-ecords of the best edition, together with any printed or other
33 visually perceptible material published with such phonorecords.
34 This deposit is not a condition of copyright protection.
35 (b) The required copies or phonorecords shall be deposited in tlie
36 Copyright Office for the use or disposition of the Library of Congress.
37 Tlie Register of Copyrights shall, when requested by the depositor
38 and upon payment of the fee prescribed by section 708, issue a receipt
39 for the deposit.
40 (c) The Eegister of Copyrights may by regulation exempt any
45
43
1 categories of material from the deposit requirements of this section,
2 or require deposit of only one copy or phonorecord with respect to
3 any categories.
4 (d) At any time after publication of a work as provided by sub-
5 section (a), the Register of Copyrights may make written demand
6 for the required deposit on any of the persons obligated to make the
7 deposit under subsection (a). Unless deposit is made within three
8 months after the demand is received, the person or persons on whom
9 the demand was made are liable :
10 (1) toafineof not more than $250 for each work; and
11 (2) to pay to the Library of Congress the total retail price of
12 the copies or phonorecords demanded, or, if no retail price has
13 been fixed, the reasonable cost to the Library of Congress of
14 acquiring them.
15 § 408. Copyright registration in general
16 (a) Registration^ Permissive. — At any time during the subsistence
17 of copyright in any published or unpublished work, the owner of
18 copyright or of any exclusive right in the work may obtain registration
19 of the copyright claim by delivering to the Copyright Office the deposit
20 specified by this section, together with the application and fee specified
21 by sections 409 and 708. Subject to the provisions of section 405(a),
22 such registration is not a condition of copyright protection.
23 (b) Deposit for Copyright Registration. — Except as provided by
24 subsection (c), the material deposited for registration shall include:
25 (1) in the case of an impublished work, one complete copy or
26 phonorecord ;
27 (2) in the case of a published work, two complete copies or
28 phonorecords of the best edition ;
29 (3) in the case of a work first published abroad, one complete
30 copy or phonorecord as so published ;
31 (4) in the case of a contribution to a collective work, one com-
32 plete copy or phonorecord of the best edition of the collective
33 work.
34 Copies or phonorecords deposited for the Library of Congress imder
35 section 407 may be used to satisfy the deposit provisions of this section,
36 if they are accompanied by the prescribed application and fee, and by
37 any additional identifying material that the Register may, by regula-
38 tion, require.
39 (c) Administrative Classification and Optional Deposit. — The
40 Register of Copyrights is authorized to specify by regulation the
46
44
1 administrative classes into which works are to be placed for purposes of
2 deposit and registration, and the nature of the copies or phonorecords
3 to be deposited in tlie various classes specified. The regulations may
4 require or permit, for particular classes, the deposit of identifying
5 material instead of copies or phonorecords, the deposit of only one copy
6 or phonorecord where two would normally be required, or a single
7 registration for a group of related works. This administrative classi-
8 fication of works has no significance with resj^ect to the subject matter
9 of copyright or the exclusive rights provided by this title.
10 (d) Corrections and Amplifications. — The Register may also
11 establisih, by regulation, formal procedures for the filing of an applica-
12 tion for supplementary registration, to corre^^t an error in a copyrig'ht
13 registration or to amplify the information given in a registration. Such
14 application shall be accompanied by the fee provided by section 708,
15 and shall clearly identify the registration to be corrected or amplified.
16 The information contained in a supplementary registration augments
17 but does not supersede that contained in the earlier registration.
18 (e) Published Edition of Previously Registered Work. — ^Reg-
19 istration for the first published edition of a work previously registered
20 in unpublished form may be made even though the work as published is
21 substantially the same as the unpublished version.
22 § 409. Application for registration
23 The application for copyright registration shall be made on a form
24 prescribed by the Register of Copyrights and shall include :
25 ( 1 ) the name and address of the copyright claimant ;
26 (2) in the case of a work other than an anonymous or pseudony-
27 mous work, the name and nationality or domicile of the author or
28 authors and, if one or more of the authors is dead, the dates of
29 their deaths;
30 (3) if the work is anonymous or pseudonymous, the nationality
31 or domicile of the author or authors ;
32 (4) in the case of a work made for liire, a statement to this
33 effect;
34 (5) if the copyright claimant is not the author, a brief state-
35 ment of how the claimant obtained ownership of the copyright ;
36 (6) the title of the work, together with any previous or alterna-
37 tive titles under which the work can be identified ;
38 (7) the year in which creation of t lie work was completed ;
39 (8) if the work has been published, the date and nation of its
40 first publication ;
47
45
1 (9) in the case of a compilation or derivative work, an identi-
2 fication of any pre-existing work or works that it is based on or
3 incorporates, and a brief, general statement of the additional
4: material covered by the copyright claim being registered;
5 (10) in the case of a published work containing material of
6 which copies are required by section 601 to be manufactured in
7 the United States, the names of the persons or organizations
8 who performed the processes specified by subsection (c) of sec-
9 tion 601 with respect to that material, and the places where those
10 processes were performed ; and
11 (11) any other information regarded by the Register of Copy-
12 rights as bearing upon the preparation or identification of the
13 work or the existence, ownership, or duration of the copyright.
14 § 410. Registration of claim and issuance of certificate
15 (a) Wlien, after examination, the Register of Copyrights deter-
16 mines that, in accordance with the provisions of this title, the material
17 deposited constitutes copyrightable subject matter and that the other
18 legal and formal requirements of this title have been met, he shall reg-
19 ister the claim and issue to the applicant a certificate of registration
20 under the seal of the Copyright Office. The certificate shall contain
21 the information given in the application, together with the number
22 and effective date of the registration.
23 (b) In any case in which the Register of Copyrights determines
24 that, in accordance with the provisions of this title, the material de-
25 posited does not constitute copyrightable subject matter or that the
26 claim is invalid for any other reason, he sail refuse registration and
27 shall notify the applicant in writing of the reasons for his action.
28 (c) In any judicial proceedings the certificate of a registration made
29 before or within five years after first publication of the work shall
30 constitute prima facie evidence of the validity of the copyright and
31 of the facts stated in the certificate. The evidentiary weight to be
32 accorded the certificate of a registration made thereafter shall be
33 within the discretion of the court.
34 (d) The effective date of a copyright registration is the day on
35 which an application, deposit, and fee, which are later determined by
36 the Register of Copyrights or by a court of competent jurisdiction to
37 be acceptable for registrtion, have all been received in the Copyright
38 Office.
48
46
1 § 411. Registration as pierequisite to infringement suit
2 (a) Subject to the provisions of subsection (b), no action for in-
3 fringement of the copyright in any work shall be instituted until
4 registration of the copyright claim has been made in accordance with
5 this title. In any case, however, where the deposit, application, and fee
6 required for registration have been delivered to the Copyright Office
7 in proper form and registration has been refused, the applicant is
8 entitled to institute an action for infringement if notice thereof, with
9 a copy of the complaint, is served on the Register of Copyrights. The
10 Register may, at his option, become a party to the action with respect
11 to the issue of registrability of the copyright claim by entering his
12 appearance within sixty days after such service, but his failure to do
13 so shall not deprive the court of jurisdiction to determine that issue.
14 (b) In the case of a work consisting of sounds, images, or both, the
15 first fixation of which is made simultaneously with its transmission,
16 the copyright owner may either before or after such fixation takes
17 place, institute an action for infringement under section 501, fully
18 subject to the remedies provided by sections 502 through 506, if. in
19 accordance with requirements that the Register of Copyrights shall
20 prescribe by regulation, the copyright owner —
21 (1) serves notice upon the infringer, not less than ten or more
22 than thirty days before such fixation, identifying the work and
23 the specific time and source of its first transmission, and declar-
24 ing an intention to secure copyright in the work ; and
25 (2) makes registration for the work within three months after
26 its first transmission.
27 § 412. Registration as prerequisite to certain remedies for
28 infringement
29 In any action under this title, other than an action instituted under
30 section 411 (b) , no award of statutory damages or of attoinoj-'s fees, as
31 provided by sections 504 and 505, shall be made for :
32 (1) anj' infringement of copyright in an unpublished work
33 commenced before the effective date of its registration; or
34 (2) any infringement of copyright commenced after first pub-
35 lication of the work and before the effective date of its registra-
36 tion, unless such registration is made within three months after
37 its first publication.
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47
1 Chapter 5.— COPYRIGHT INFRINGEMENT AND REMEDIES
Sec.
501. Infringement of copyright.
502. Remedies for infringement : Injunctions.
503. Remedies for infringement : Impounding and disposition of infringing
articles.
504. Remedies for infringement : Damages and profits.
505. Remedies for infringement : Costs and attorney's fees.
506. Criminal offenses.
507. Limitations on actions.
508. Notification of filing and determination of actions.
2 § 501. Infringement of copyright
3 (a) Anyone who violates any of the exclusive rights of the copy-
4 right owner as provided by sections 106 through 117, or who imports
5 copies or phonorecords into the United States in violation of section
6 602, is an infringer of the copyright.
7 (b) The legal or beneficial owner of an exclusive right under a
8 cojiyright is entitled, subject to the requirements of sections 205(d)
9 and 411, to institute an action for any infringement of that particular
10 right committed while he is the owner of it. The court may require
11 him to serve written notice of the action with a copy of the complaint
12 upon any person shown, by the records of the Copyright Office or
13 otherwise, to have or claim an interest in the copyright, and shall re-
14 quire that such notice be served upon any person whose interest is
15 likely to be affected by a decision in the case. The court may require
16 the joinder, and shall permit the intervention, of any person having
17 or claiming an interest in the copyright.
18 (c) For any secondary transmission by a cable system that em-
19 bodies a performance or a display of a work which is actionable as an
20 act of infringement under subsection (c) of section 111, a television
21 broadcast station holding a copyright or other license to transmit or
22 j)erf orm the same version of that work shall, for purposes of subsection
23 (b) of this section, be treated as a legal or beneficial owner if such
24 secondary transmission occurs within the local service area of that
25 television station.
26 § 502. Remedies for infringement: Injunctions
27 (a) Any court having jurisdiction of a civil action arising under
28 this title may, subject to the provisions of section 1498 of title 28,
29 grant temporary and final injunctions on such terms as it may deem
30 reasonable to prevent or restrain infringement of a copyright.
31 (b) Any such injunction may be served anywhere in the United
32 States on the person enjoined; it shall be operative throughout the
33 United States and shall be enforceable, by proceedings in contempt or
34 otherwise, by any United States court having jurisdiction of that per-
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48
1 son. The clerk of the court granting the injunction shall, when re-
2 quested by any other court in which enforcement of the injunction is
3 sought, transmit promptly to the other court a certified copy of all
4 the papers in the case on file in his office.
'5 § 503. Remedies for infringement : Impounding and disposition of
6 infringing articles
7 (a) At any time while an action under this title is pending, the court
8 may order the impounding, on such terms as it may deem reasonable,
9 of all copies or phonorecords claimed to have been made or used in vio-
10 lation of the copyright owner's exclusive rights, and of all plates,
11 molds, matrices, masters, tapes, film negatives, or other articles by
12 means of which such copies or phonorecords may be reproduced.
13 (b) As part of a final judgment or decree, the court may order the
14 destruction or other reasonable disposition of all copies or phonorec-
15 ords found to have been made or used in violation of the copyright
16 owner's exclusive rights, and of all plates, molds, matrices, masters,
17 tapes, film negatives, or other articles by means of which such copies
18 or phonorecords may be reproduced.
19 § 504. Remedies for infringement : Damages and profits
20 (a) In General. — Except as otherwise provided by this title, an in-
21 f ringer of copyright is liable for either :
22 (1) the copyright owner's actual damages and any additional
23 profits of the infringer, as provided by subsection (b) ; or
24 (2) statutory damages, as provided by subsection (c).
25 (b) Actual Damages and Profits. — The copyright owner is en-
26 titled to recover the actual damages suffered by him as a result of the
27 infringement, and any profits of the infringer that are attributable to
28 the infringement and are not taken into account in computing the
29 actual damages. In establishing the infringer's profits, the copyright
30 owner is required to present proof only of the infringer's gross revenue,
31 and the infringer is required to prove his deductible expenses and the
32 elements of profit attributable to factors other than the copyrighted
33 work.
34 (c) Statutory Damages.—
35 (1) Except as provided by clause (2) of this subsection, the
36 copyright owner may elect, at any time before final judgment is
37 rendered, to recover, instead of actual damages and profits, an
38 award of statutory damages for all infringements involved in
39 the action, with respect to any one work, for winch any one
40 infringer is liable individually, or for which any two or more
51
49
1 infrinjjers are liable jointly and severally, in a sum of not less
2 than $250 or more tlian $10,000 as the court considers just. For
3 the purposes of this subsection, all the parts of a compilation or
4 derivati\-e Avoi'k constitute one work.
5 (2) Tn a case where the copyright owner sustains the burden
6 of provin<r, and the court finds, that infrin<rement was committed
7 willfully, tlie court in its discretion may increase the award of
8 statutory damages to a smn of not more than $50,000. In a case
9 where the infringer sustains the burden of proving, and the court
10 finds, that he was not aware and had no reason to believe that his
11 acts constituted an infringement of copyright, the court in its
12 discretion may reduce tlie award of statutory damages to a sum
13 of not less than $100. In a case where an instructor, librarian or
14 archivist in a nonprofit educational institution, library, or ar-
15 chives, who infringed by reproducing a copyrighted work in copies
16 or phonorecords, sustains the burden of proA'ing that he believed
17 and had reasonable grounds for believing that the reproduction
18 was a fair use under section 107, the court in its discretion may
19 remit statutory damages in whole or in part.
20 § 505. Remedies for infringement: Costs and attorney's fees
21 In any civil action under tjiis title, the court in its discretion may
22 allow the recovery of full costs by or against any party other than
23 the United States or an officer thereof. Except as otherwise provided
24 by this title, the court may also award a reasonable attorney's fee to
25 the prevailing party as part of the costs.
26 § 506. Criminal offenses
27 (a) Criiminai. Infringement. — Any person who infringes a
28 copyright willfully and for purposes of commercial advantage or pri-
29 vate financial gain shall be fined not more than $2,500 or imprisoned
30 not more than one year, or both, for the first such offense, and shall
31 be fined not more than $10,000 or imprisoned not more than three
32 years, or both, for any subsequent oft'ense, provided however, that any
33 person wlio infringes willfully and for purposes of commercial advan-
34 tage or private financial gain the copyright in a sound recording
35 afforded by subsections (1) and (3) in section 106 or the copyright in
36 a motion picture afforded by subsections (1), (3), and (4) in section
37 106 shall be fined not more than $25,000 or imprisoned for not more
38 than one year, or both, for the first such offense and shall be fined
39 not more than $50,000 or imprisoned not more than two years, or
40 both, for any subsequent offense.
52
50
1 (h) Fraudulent Copyrioht Notice. — Any person who, with fraud-
2 nlent intent, places on any article a notice of copyright or words of
3 the same purport that he knows to be false, or who, with fraudulent
4 intent, publicly distributes or imports for public distribution any
5 article bearing such notice or words that he knows to be false, shall be
6 fined not more than $2,500.
7 (c) Frauoulext Removal of CopYr.iciiT Notice. — Any person who,
8 with fraudulent intent, removes or alters any notice of copyright
9 appearing on a copy of a copyrighted work shall be fined not more
10 than $2,500.
11 (d) False Representation. — Any person who knowingly makes a
12 false representation of a material fact in the application for copyright
13 registration provided for by secton 409, or in any written statement
14 filed in connection with the application, shall be fined not more than
15 $2,500.
16 § 507. Limitations on actions
17 (a) Criminal Proceedings.— No criminal proceeding shall be main-
18 tained under the provisions of this title unless it is commenced within
19 three years after the cause of action ai'ose.
20 (b) Civil Actions. — No civil action shall be maintained under the
21 provisions of this title unless it is commenced within three years after
22 the claim accrued.
23 § 508. Notification of filing and determination of actions
24 (a) Within one month softer the filing of any action under this title,
25 the clerks of the courts of the United States shall send written notifica-
26 tion to the Register of Copyrights setting forth, as far as is shown
27 by the papers filed in the court, the names and addresses of the parties
28 and the title, author, and registration number of each work involved
29 in the action. If ajiy other copyrighted work is later included in the
30 action by amendment, answer, or other pleading, the clerk shall also
31 send a notification concerning it to tlie Register within one month
32 after the pleading is filed.
33 (b) Within one month after any final order or judgment is issued
34 in tlie case, the clerk of the court shall notify the Register of it,
35 sending him a copy of the order or judgment together with the written
36 opinion, if any, of the court.
37 (c) Upon receiving the notifications specified in this section, the
38 Registei' shall make them a part of the public records of the Copyright
39 Office.
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51
1 Chapter 6.— MANUFACTURING REQUIREMENT AND
2 IMPORTATION
Sec.
601. Manufacture, importation, and public distribution of certain copies.
602. Infringing importation of copie.s or phonorecord.s.
603. Importation prohibitions : Enforcement and disposition of excluded articlea
3 § 601. Manufacture, importation, and public distribution of cer-
4 tain copies
5 (a) Except as provided by subsection (b), the importation into or
6 public distribution in the United States of copies of a work consisting
7 preponderantly of nondramatic literary material that is in the English
8 language and is protected under this title is prohibited unless the
9 i^ortions consisting of such material have been manufactured in the
10 United States or Canada.
11 ( b ) The provisions of subsection ( a ) do not apply :
12 (1) where, on the date when importation is sought or public
13 distribution in the United States is made, the author of any sub-
14 stantial part of such material is neither a national nor a domicil-
15 iary of the United States or, if he is a national of the United
16 States, has been domiciled outside of the United States for a
17 continuous period of at least one year immediately preceding that
18 date ; in the case of work made for hire, the exemption provided
19 by this clause does not apply unless a substantial part of the work
20 was prepared for an employer or other person who is not a na-
21 tional or domiciliary of the United States or a domestic corpora-
22 tion or enterprise ;
23 (2) where the Bureau of Customs is presented with an import
24 statement issued under the seal of the Copyright Office, in which
25 case a total of no more than two thousand copies of any one such
26 work shall be allowed entry ; the import statement shall be issued
27 upon request to the copyright owner or to a person designated by
28 bim at the time of registration for the work under section 408
29 or at any time thereafter ;
30 (3) where importation is sought under the authority or for the
31 use, other than in schools, of the government of the United States
32 or of any State or political subdivision of a State ;
33 (4) where importation, for use and not for sale, is sought:
34 (A) by any person with respect to no more than one copy
35 of any one work at any one time ;
36 (B) by any person arriving from abroad, with respect to
37 copies forming part of his personal baggage ; or
54
52
1 (C) by an organization operated for scholarly, educa-
2 tional, or religious purposes and not for private gain, with
3 respect to copies intended to form a part of its library ;
4 (5) where the copies are reproduced in raised characters for
5 the use of the blind ;
6 (6) where, in addition to copies imported under clauses (3)
7 and (4) of this subsection, no more than two thousand copies of
8 any one such work, which have not been manufactured in the
9 United States or Canada, are publicly distributed in the United
10 States.
11 (c) The requirement of this section that copies be manufactured in
12 the United States or Canada is satisfied if :
13 (1) in the case where the copies are printed directly from type
14 that has been set, or directly from plates made from such type,
15 the setting of the type and the making of the plates have been
16 performed in the United States or Canada ; or
17 (2) in the case where the making of plates by a lithographic
18 or photoengraving process is a final or intermediate step preceding
19 the printing of the copies, the making of the plates has been per-
20 formed in the United States or Canada ; and
21 (3) in any case, the printing or other final process of producing
22 multiple copies and any binding of the copies have been performed
23 in the United States or Canada.
24 (d) Importation or public distribution of copies in violation of
25 this section does not invalidate protection for a work under this title.
26 However, in any civil action or criminal proceeding for infringement
27 of the exclusive rights to reproduce and distribute copies of the work,
28 the infringer has a complete defense with respect to all of the non-
29 dramatic literary material comprised in the work and any other parts
30 of the work in which the exclusive rights to reproduce and distribute
31 copies are owned by the same person who owns such exclusive rights
32 in the nondramatic literary material, if he proves :
33 (1) that copies of the work have been im^wrted into or publicly
34 distributed in the United States in violation of this section by or
35 with the authority of the owner of such exclusive rights ; and
36 (2) that the infringing copies were manufactured in the United
37 States or Canada in accordance with the provisions of subsection
38 (c) ; and
39 (3) that the infringement was commenced before the effective
55
53
1 date of registration for an authorized edition of the work, the
2 copies of which have been manufactured in the United States or
3 Canada in accordance with the provisions of subsection (c).
4 (e) In any action for infringement of the exclusive rights to repro-
5 duce and distribute copies of a work containing material required by
6 this section to be manufactured in the United States or Canada, the
7 copyright owner shall set forth in the complaint the names of the per-
8 sons or organizations who performed the processes specified by subsec-
9 tion (c) with respect to that material, and the places where those
10 processes were performed.
11 § 602. Infringing importation of copies or phonorecords
12 (a) Importation into the United States, without the authority of
13 the owner of copyright under this title, of copies or phonorecords of
14 a work that have been acquired albroad is an infringement of the
15 exclusive right to distribute copies or phonorecords under section 106,
16 actionable under section 501. This subsection does not apply to :
17 (1) importation of copies or phonorecords under the authority
18 or for the use of the government of the United States or of any
19 State or political subdivision of a State but not including copies
20 or phonorecords for use in schools, or copies of any audiovisual
21 work imported for purposes other than archival use ;
22 (2) importation, for the private use of the importer and not
23 for distribution, by any person with respect to no more than one
24 copy or phonorecord of any one work at any one time, or by any
25 person arriving from abroad with respect to copies or phono-
26 records forming part of his personal baggage; or
27 (3) importation by or for an organization operated for schol-
28 arly, educational, or religious purposes and not for private gain,
29 with respect to no more than one copy of an audiovisual work
30 solely for its archival purposes, and no more than five copies or
31 phonorecords of any other work for its library lending or archival
32 purposes.
33 (b) In a case where the making of tlie copies or phonorecords would
34 have constituted an infringement of copyright if this title had been
35 applicable, their importation is prohibited. In a case where the copies
36 or phonorecords were lawfully made, the Bureau of Customs has no
37 authority to prevent their importation unless the provisions of section
38 601 are applicable. In either case, the Secretary of tlic Treasury is
39 authorized to prescribe, by regulation, a procedure under which any
56
54
1 person claiming an interest in the copyright in a particular work may,
2 upon payment of a specified fee. be entitled to notification by the
3 Bureau of the importation of articles that appear to be copies or
4 phonorecords of the work.
5 §603. Importation prohibitions: Enforcement and disposition of
6 excluded articles
7 (a) The Secretary of the Treasui'V and the United States Postal
8 Service shall separately or jointly make regulations for the enforce-
9 ment of the provisions of this title prohibiting importation.
10 (b) These regulations may require, as a condition for the exclusion
11 of articles under section 602 :
12 (1) that the person seeking exclusioii obtain a court order
13 enjoining importation of the articles; or
14 (2) that he furnish proof, of a specified nature and in accoid-
15 ance with prescribed procedures, that the copyright in which he
16 claims an interest is valid and that the importation would violate
17 the prohibition in section 602 ; he may also be required to post a
18 surety bond for any injury that may result if the detention or
19 exclusion of the articles proves to be unjustified.
20 (c) Articles imported in violation of the importation prohibitions
21 of this title are subject to seizure and forfeiture in the same manner
22 as property imported in violation of the customs revenue laws. For-
23 feited articles shall be destroyed as directed by the Secretary of the
24 Treasury or tlie court, as the case may be : howevei-, the articles may be
25 returned to the countiy of export whenever it is shown to the satisfac-
26 tion of the Secretary of the Treasury that the importer had no reasftn-
27 able grounds for believing that his acts constituted a violation of law.
28 Chapter 7.— COPYRIGHT OFFICE
Sec.
701. The Copyright Office : General responsibilities and organization.
702. Copyright Office regulations.
703. Effective date of actions in Copyright Office.
704. Retention and disposition of articles deposited in Copyright Office.
705. Copyright Office records: Preparation, maintenance, public inspection, and
searching.
706. Copies of Copyright Office records.
707. Copyright Office forms and publications.
708. Copyriglit Off.ce fees.
709. Delay in delivery caused by disruption of jiostal or other services.
29 §701. The Copyright Office: General responsibilities and organi-
30 zation
31 (a) All administrative functions and duties under this title, ex-
32 cept as otherwise specified, are the responsibility of the Register of
33 Copyrights as director of the Copyright Office in the Library of Con-
57
55
1 gress. The Register of Copyrights, together with the subordinate
2 officers and employees of the Copyright Office, sliall be appointed by
3 the Librarian of Congress, and shall act under his general direction
4: and supervision.
5 (b) The Register of Copyrights shall adopt a seal to be used on
6 and after January 1, 1977, to authenticate all certified documents
7 issued by the Copyright Office.
8 (c) The Register of Copyrights shall make an annual report to
9 the Librarian of Congress of the work and accomplishments of the
10 Copyright Office during the previous fiscal year. The annual report
11 of the Register of Copyrights shall be published separately and as
12 a part of the annual report of the Librarian of Congress.
13 § 702. Copyright Office regulations
14 The Register of Copyrights is authorized to establish regulations
15 not inconsistent with law for the administration of the functions and
16 duties made his responsibility under this title. All regulations estab-
17 lished by the Register under this title are subject to the approval of
18 the Librarian of Congress.
19 §703. EfiFective date of actions in Copyright Office
20 In any case in which time limits are prescribed under this title
21 for the performance of an action in the Copyright Office, and in
22 which the last day of the prescribed period falls on a Saturday, Sun-
23 day, holiday or other non-business day within the District of Colum-
24 bia or the Federal Grovernment, the action may be taken on the next
25 succeeding business day, and is effective as of the date when the
26 period expired.
27 § 704. Retention and disposition of articles deposited in Copyright
28 Office
29 (a) Upon their deposit in the Copyright Office under sections 407
30 and 408, all copies, phonorecords, and identifying material, including
31 those deposited in connection with claims that have been refused
32 registration, are tlie property of the United States Government.
33 (b) In the case of published works, all copies, phonorecords. and
34 identifying material deposited are available to the Library of Con-
35 gress for its collections, or for exchange or transfer to any other
36 library. In the case of unpublished works, the Library is entitled to
37 select any deposits for its collections.
38 (c) Deposits not selected by the Library under subsection (b), or
39 identifying portions or reproductions of them, shall be retained under
40 the control of the Copyright Office, including rentention in Go\crn-
57-786 O - 76 - pt. 1 - 5
58
56
1 ment storage facilities, for the longest period considered practicable
2 and desirable by the Register of Copyrights and the Librarian of
3 Congress. After that period it is within the joint discretion of the
4 Register and the Librarian to order their destruction or other disposi-
5 tion ; but, in the case of unpublished works, no deposit shall be de-
6 stroyed or otherwise disposed of during its term of copyright.
7 (d) The depositor of copies, phonorecords, or identifying material
8 imder section 408, or the copyright owner of record, may request
9 retention, under the control of the Copyright Office, of one or more
10 of such articles for the full term of copyright in the work. The Regis-
11 ter of Copyright shall prescribe, by regulation, the conditions under
12 which such requests are to be made and granted, and shall fix the
13 fee to be charged under section 708(a) (11) if the request is granted.
14 §705. Copyright Office records: Preparation, maintenance, public
15 inspection, and searching
16 (a) The Register of Copyrights shall provide and keep in the Copy-
17 right Office records of all deposits, registrations, recordations, and
18 other actions taken under this title, and shall prepare indexes of all
19 such records.
20 (b) Such records and indexes, as well as the articles deposited in
21 connection with completed copyright registrations and retained under
22 the control of the Copyright Office, shall be open to public inspection.
23 (c) Upon request and payment of the fee specified by section 708,
24 the Copyright Office shall make a search of its public records, indexes,
25 and deposits, and shall furnish a report of the information they dis-
26 close with respect to any particular deposits, registrations, or recorded
27 documents.
28 § 706. Copies of Copyright Office records
29 (a) Copies may be made of any public records or indexes of the
30 Copyright Office ; additional certificates of copyright registration and
31 copies of any public records or indexes may be furnished upon request
32 and payment of the fees specified by section 708.
33 (b) Copies or reproductions of deposited articles retained under
34 the control of the Copyright Office shall be authorized or furnished
35 only under the conditions specified by the Copyright Office regulations.
36 § 707. Copyright Office forms and publications
37 (a) Catalog of Copyright Entries. — The Register of Copyrights
38 shall compile and publish at periodic intervals catalogs of all copy-
39 right registrations. These catalogs shall be divided into parts in
40 accordance with the various classes of works, and the Register has
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57
1 discretion to determine on the basis of practicability and usefulness,
2 the form and frequency of publication of each particular part.
3 (b) Other Pubi.ications. — The Register shall furnish, free of
4 charge upon request, application forms for copyright registration and
5 general informational material in connection with the functions of the
6 Copyright Office. He also has authority to publish compilations of
7 information, bibliographies, and other material he considers to be
8 of value to the public.
9 (c) Distribution of Publications. — All publications of the Copy-
10 right Office shall be furnished to depository libraries as specified under
11 section 1905 of title 44. United States Code, and, aside from those fur-
12 nished free of charge, shall be offered for sale to the public at prices
13 based on the cost of reproduction and distribution.
14 § 708. Copyright Office fees
15 (a) The following fees shall be paid to the Register of Copyrights:
16 ( 1 ) for the registration of a copyright claim or a supplementary
17 registration under section 408, including the issuance of a certifi-
18 cate of registration, $6 ;
19 (2) for the registration of a claim to renewal of a subsisting
20 copyright in its first term under section 304(a), including the
21 issuance of a certificate of registration, $4;
22 (3) for the issuance of a receipt for a deposit under section
23 407, $2;
24 (4) for the recordation, as provided by section 205, of a transfer
25 of copyright ownership or other document of six pages or less,
26 covering no more than one title, $5 ; for each page over six and
27 for each title over one, 50 cents additional ;
28 (5) for the filing, under section 115(b), of a notice of intention
29 to make phonorecords, $3 ;
30 (6) for the i-ecordation, under section 302(c), of a statement
31 revealing the identity of an author of an anonymous or pseu-
32 donymous work, or for the recordation, under section 302(d) , of a
33 statement relating to the death of an author, $5 for a document of
34 six pages or less, covering no more than one title; for each page
35 over six and for each title over one, 50 cents additional ;
36 (7) for the issuance, under section 601, of an import state-
37 ment, $3;
38 (8) for tlie issuance, under section 706, of an additional certifi-
39 cate of registration, $2 ;
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58
1 (9) for the issuance of any other certification, $3; the Register
2 of Copyri<rhts has discretion, on the 'basis of their cost, to fix the
3 fees for preparing: copies of Copyright Office records, whether
4 they are to be certified or not ;
5 (10) for the making and reporting of a search as provided by
6 section 705. and for any related services, $5 for each hour or frac-
7 tion of an hour consumed ;
8 (11) for any other special services requiring a substantial
9 amount of time or expense, sucli fees as the Register of Copyrights
10 may fix on the basis of the cost of providing the service.
11 (b) The fees prescribed by or under this section are applicable to the
12 United States Government and any of its agencies, employees, or
13 officers, but the Register of Copyrights has discretion to waive the
14 requirement of this subsection in occasional or isolated cases involving
15 relatively sinall amoimts.
16 § 709. Delay in delivery caused by disruption of postal or other
17 services
18 Tn any cas<e in which the Register of Copyright determines, on the
19 basis of such evidence as he may by rejtulation require, that a deposit,
20 application, fee, or any otiier material to be delivered to the Copyright
21 Office by a particular date, would have been received in the Copyright
22 Office in due time except for a general disruption or suspension of
23 [)ostal or other transportation or communications services, the actual
24 receipt of such material in the Copyright Office within one month after
25 the date on which the Register determines that the disruption or sus-
26 pension of such services has terminated, shall be considered timely.
27 Chapter 8.— COPYRIGHT ROYALTY TRIBUNAL
Sec.
SOI. Copyright Royalty Tribunal: Establislunent and purpose.
802. Petitions for the adjustment of roj-alty rates.
803. Membership of the Tribunal.
804. Procedures of the Tribunal.
805. Compensation of members of the Triliunal ; expenses of the Tribunal.
806. Reports to the Congre.ss.
807. Effective date of royalty adjustment.
808. Effective date of royalty distribution.
809. .Judicial renew.
28 § 801. Copyright Royalty Tribunal : Establishment and purpose
29 (a) There is hereby created in tJie Library of Congress a Copyright
30 Royalty Tril)unal.
31 (b) Subject to the piovisions of this chapter, the purpose of the
32 Tribunal shall be: (1) to make determinations concerning the adjust-
33 ment of the copyright royalty rates specified by sections 111 and 11;")
34 so as to assure that such rates are reasonable and in the event that the
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59
1 Tribunal shall determine that the statutory royalty rate, or a rate pre-
2 viously established by tlie Tribunal, or the revenue basis in respect to
3 section 111, does not provide a reasonable royalty fee for the basic
4 service of providing secondary transmissions of the primary broad-
5 cast transmitter or is otherwise unreasonable, the Tribunal may change
6 the royalty rate or the revenue basis on which the royalty fee shall be
7 assessed or both so as to assure reasonable royalty fee; and (2) to de-
8 termine in certain circumstances the distribution of the royalty fees
9 deposited with the Register of Copyrights under sections 111 and 116.
10 § 802, Petitions for the adjustment of royalty rates
11 (a) On July 1. 1977, the Register of Copyrights shall cause to be
12 published in the Federal Register notice of the commencement of pro-
13 ceedings for the review of the royalty rate specified by sections 111
14 and 115.
15 (b) During the calendar year 1981, and in each subsequent fifth
16 calendar year, any owner or user of a copyrighted work whose royalty
17 rates are specified by this title, or by a rate established by the Tri-
18 bunal, may file a petition with the Register of Copyrights declaring
19 that the petitioner requests an adjustment of the rate. The Register
20 shall make a determination as to whether the applicant has a signifi-
21 cant interest in the royalty rate in which an adjustment is requested.
22 If the Register determines that the petitioner has a significant interest,
23 he shall cause notice of his decision to be published in the Federal
24 Register.
25 § 803. Membership of the Tribunal
26 (a) In accordance with Section 802, or upon certifying the existence
27 of a controversy concerning the distribution of royalty fees deposited
28 pursuant to sections 111 and 116. the Register shall request the Amer-
29 loan Arbitration Association or any similar successor organization to
30 furnish a list of three members of said Association. The Register shall
31 commmiicate the names together witli such information as may be
32 appropriate to all parties of interest. And such party witliin twenty
33 days from the date said communication is sent may submit to the Regis-
34 ter written objections to any or all of the proposed names. If no such
35 objections are leceived. oi- if tlie Registei' determines that said objec-
36 tions are not well founded, he shall certify the appointment of the three
37 designated individuals to constitute a panel of the Tribunal for the
38 consideration of the specified rate or royalty distribution. Such panel
39 shall function as the Tribunal established in section 801. If the Register
40 determines that the objections to the designation of one or more of the
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60
1 proposed individuals are well founded, the Register shall request the
2 American Arbitration Association or any similar successor organiza-
3 tion to propose the necessary number of substitute individuals. Upon
4 receiving such additional names the Register shall constitute the panel.
5 The Register shall designate one member of the panel as Chairman.
6 (b) If any member of a panel becomes unable to perform his duties,
7 the Register, after consultation with the parties, may provide for the
8 selection of a successor in the manner prescribed in subsection (a).
9 § 804. Procedures of the Tribunal
10 (a) The Tribunal shall fix a time and place for its proceedings and
11 shall cause notice to be given to the parties.
12 (b) Any organization or person entitled to participate in the pro-
13 ceedings may appear directly or be represented by counsel.
14 (c) Except as otherwise provided by law, the Tribunal shall deter-
15 mine its own procedure. For the purpose of carrying out the provisions
16 of this chapter, the Tribunal may hold hearings, administer oaths,
17 and require, by subpoena or otherwise, the attendance and testimony
18 of witnesses and the production of documents.
19 (d) Every final decision of the Tribunal shall be in writing and
20 shall state the reasons therefor.
21 (e) The Tribunal shall render a final decision in each proceeding
22 within one year from the certification of the panel. Upon a showing
23 of good cause, the Senate Committee on the Judiciary and the House of
24 Representatives Committee on the Judiciary may waive this require-
25 ment in a particular proceeding.
26 § 805. Compensation of members of the Tribunal ; expenses of the
27 Tribunal
28 (a) In j^roceedings for the distribution of royalty fees, the compen-
29 sation of members of the Tribunal and other expenses of the Tribunal
30 shall be deducted prior to the distribution of the funds.
31 (b) In proceedings for the adjustment of royalty rates, there is
32 hereby authorized to be appropriated such sums as may be necessary.
33 (c) The Library of Congress is authorized to fuinish facilities and
34 incidental service to the Tribunal.
35 (d) The Tribunal is authorized to procure temporary and inter-
36 mittent services to the same extent as is authorized by section 3109 of
37 title 5, United States Code.
38 § 806. Reports to the Congress
39 The Tribunal immediately upon making a final determination in
40 any proceeding for adjustment of a statutory royalty shall transmit
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61
1 its decision, together with the reasons therefor, to the Secretary of the
2 Senate and the Clerk of the House of Representatives for reference
3 to the Judiciary Committees of the Senate and the House of
4 Representatives.
5 § 807. Effective date of royalty adjustment
6 (a) Prior to the expiration of the first period of ninety calendar
7 days of continuous session of the Congress, following the transmittal
8 of the report specified in section 806, either House of the Congress may
9 adoiJt a resolution stating in substance that the House does not favor
10 the recommended royalty adjustment, and such adjustment, therefore,
11 shall not become effective.
12 (b) For the purposes of subsection (a) of this section
13 ( 1 ) Continuity of session shall be considered as broken only by
14 an adjournment of the Congress sine die, and
15 (2) In the computation of the ninety-day period there shall be
16 excluded the days on which either House is not in session because
17 of an adjournment of more than three days to a day certain.
18 (c) In the absence of the passage of such a resolution by either
19 House during said ninety-day period, the final determination by the
20 Tribunal of a petition for adjustment shall take effect on the first day
21 f ollow ing ninety calendar days after the expiration of the period speci-
22 fied by subsection (a).
23 (d) The Register of Copyrights shall give notice of such effective
24 date by publication in the Federal Register not less than sixty days
25 before said date.
26 § 808. Effective date of royalty distribution
27 A final determination of the Tribunal concerning the distribution
28 of royalty fees deposited with the Register of Copyrights pursuant to
29 sections 111 and 116 shall become effective thirty days following such
30 determination unless prior to that time an application has been filed
31 pursuant to section 809 to vacate, modify or correct the determination,
32 and notice of such application has been served upon the Register of
33 Copyrights. The Register upon the expiration of thirty days shall dis-
34 tribute such I'oyalty fees not subject to any apjjlication filed pui-suant
35 to section 809.
36 § 809. Judicial review
37 In any of the following cases tlie T'nited States District Court for
38 the Distrirt of Columbia may make an order vacating, modifying or
39 correcting a final determination of the Tribunal concerning the distri-
40 Ijution of royalty fees —
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62
1 (a) Where the determination was procured by corruption, fraud,
2 or undue means.
3 (b) Where there was evident partiality or corruption in any mem-
4 her of the panel.
5 (c) Where any member of the panel was guilty of any misconduct
6 by which the rights of any party have been prejudiced.
7 TRANSITIONAL AND STTPPLEMENTARY PROVISIONS
8 Sec. 102. This title becomes effective on January 1. 1977. except as
9 otherwise provided by section 304(b) of title 17 as amended by this
10 title.
11 Sec. 103. This title does not provide copyright protection for any
12 work that goes into the public domain before January 1, 1977. The
13 exclusive rights, as provided by section 106 of title 17 as amended
14 by this title, to reproduce a work in phonorecords and to distribute
15 phonorecords of the work, do not extend to any nondramatic musical
16 work copyrighted before July 1, 1909.
17 Sec. 104. All proclamations issued by the President under sections
18 1(e) or 9(b) of title 17 as it existed on December 31, 1976, or under
19 previous copyright statutes of the United States shall continue in
20 force until terminated, suspended, or revised by the President.
21 Sec. 105. (a) (1) Section 505 of title 44, United States Code, Sup-
22 plement IV, is amended to read as follows :
23 '*§ 505. Sale of duplicate plates
24 "The Public Printer shall sell, under regulations of the Joint Com-
25 mittee on Printing to persons who may apply, additional or duplicate
26 stereotype or electrotype plates from which a Government publication
27 is printed, at a price not to exceed the cost of composition, the metal,
28 and making to the Government, plus 10 per centum, and tlie full
29 amount of the price shall be paid when the order is filed."
30 (2) The item relating to section 505 in the sectional analysis at the
31 beginning of chapter 5 of title 44, United States Code, is amended to
32 read as follows :
"505. Sale of duplicate plates."
33 (b) Section 2113 of title 44, United States Code, is amended to read
34 as follows :
35 "§ 2113. Limitation on liability
36 "Wlien letters and other intellectual productions (exclusive of
37 patented material, published works under copyright protection, and
38 unpublished works for which copyright registration has been made)
39 come into the custody or possession of the Administrator of General
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63
1 Services, the United States or its agents are not liable for infringe-
2 ment of copyright or analogous rights arising out of use of the mate-
3 rials for display, inspection, research, reproduction, or other purposes."
4 (c) In section 1498(b) of title 28 of the United States Code, the
5 phrase "section 101(b) of title 17" is amended to read "section 504(c)
6 of title 17".
7 (d) Section 543(a) (4) of the Internal Revenue Code of 1954, as
8 amended, is amended by striking out "(other than by reason of sec-
9 tion2or6thereof)".
10 (e) Section 3202(a) of title 39 of the United States Code is
11 amended by striking out clause (5). Section 3206(c) of title 39 of the
12 United States Code is amended by striking out clause (c). Section
13 3206(d) is renumbered (c).
14 (f) In section 6 of the Standard Reference Data Act (section
15 290(e) of title 15 of the United States Code, Supplement IV). sub-
16 section (a) is amended to delete the reference to "section 8" and to
17 substitute therefor the phrase "section 105".
18 Sec. 106. In any case where, before January 1, 1977, a person has
19 lawfully made parts of instruments serving to reproduce mechani-
20 cally a copyrighted work under the compulsory license provisions of
21 section 1(e) of title 17 as it existed on December 31. 1976, he may
22 continue to make and distribute such parts embodying the same me-
23 chanical reproduction without obtaining a new compulsory license
24 under the terms of section 115 of title 17 as amended by this title.
25 However, such parts made on or after January 1, 1977, constitute
26 phonorecords and are otherwise subject to the provisions of said
27 section 115.
28 Sec. 107. In the case of any work in which an ad interim copyright
29 is subsisting or is capable of being secured on December 31, 1976,
30 under section 22 of title 17 as it existed on that date, copyright pro-
31 tection is hereby extended to endure for the term or terms provided
32 by section 304 of title 17 as amended by this title.
33 Sec. 108. The notice provisions of sections 401 through 403 of title
34 17 as amended by this title apply to all copies or phonorecords publicly
35 distributed on or after January 1, 1977. However, in the case of a work
36 published before January 1, 1977, compliance with the notice provi-
37 sions of title 17 either as it existed on December 31, 1976, or as amended
38 by this title, is adequate witli respect to copies publicly distributed
39 after December 31. 1976.
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64
1 Sec. 109. The registration of claims to copyright for which the
2 required deposit, application, and fee were received in the Copyright
3 Office before January 1, 1977, and the recordation of assignments of
4 copyright or other instruments received in the Copyright Office before
5 January 1, 1977, shall be made in accordance with title 17 as it existed
6 on December 31, 1976.
7 Sec. 110. The demand and penalty provisions of section 14 of title 17
8 as it existed on December 31, 1976, apply to any work in which copy-
9 right has been secured by publication with notice of copyright on or
10 before that date, but any deposit and registration made after that date
11 in response to a demand under that section shall be made in accordance
12 with the provisions of title 17 as amended by this title.
13 Sec. 111. Section 2318 of title 18 of the United States Code is
14 amended to read as follows :
15 "§2318. Transportation, sale or receipt of phonograph records
16 bearing forged or counterfeit labels
17 "Whoever knowingly and with fraudulent intent transports, causes
18 to be transported, receives, sells, or offers for sale in interstate or
19 foreign commerce any phonograph record, disk, wire, tape, film, or
20 other article on which sounds are recorded, to which or upon which is
21 stamped, pasted, or affixed any forged or counterfeited label, knowing
22 the label to have been falsely made, forged, or counterfeited shall be
23 fined not more than $25,000 or imprisoned for not more than one
24 year, or both, for the first such offense and shall be fined not more than
25 $50,000 or imprisoned not more than two years or both, for any sub-
26 sequent offense."
27 Sec. 112. All causes of action that arose under title 17 before Jan-
28 nary 1, 1977, sliall be governed by title 17 as it existed when the cause
29 of action arose.
30 Sec. 113. If any provision of title 17, as amended by this title, is
31 declared unconstitutional, the validity of the remainder of the title
32 is not affected.
33 TITLE II— PROTECTION OF ORNAMENTAL DESIGNS
34 OF USEFUL ARTICLES
35 DESIGNS PROTECTED
36 Sec. 201. (a) The author or other proprietor of an original orna-
37 mental design of a useful article may secure the protection provided
38 by this title upon complying with and subject to the provisions hereof.
39 (b) For tlie purposes of this title —
40 (1) J^ "useful article" is an article which in normal use has an
41 intrinsic utilitarian function that is not merely to portray the appear-
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65
1 ance of the article or to convey information. An article which normally
2 is a part of a useful artick shall be deemed to be a useful article.
3 (2) The "design of a useful article", hereinafter referred to as a
4 "design"', consists of those aspects or elements of the article, including
5 its two-dimensional or three-dimensional features of shape and sur-
6 face, which make up the appearance of the article.
7 (3) A design is "ornamental" if it is intended to make the article
8 attractive or distinct in appearance.
9 (4) A design is "original" if it is the independent creation of an
10 author who did not copy it from another source.
11 DESIGNS NOT SUBJECT TO PROTECTION
12 Sec. 202. Protection under this title shall not be available for a
13 design that is —
14 (a) not original;
15 (b) staple or commonplace, such as a standard geometric figure,
16 familiar symbol, emblem, or motif, or other shape, pattern, or con-
17 figuration which has become common, prevalent, or ordinary ;
18 (c) ditferent from a design excluded by subparagraph (b) above
19 only in insignificant details or in elements which are variants com-
20 monly used in the relevant trades ; or
21 (d) dictated solely by a utilitarian function of the article that
22 embodies it ;
23 (e) composed of three-dimensional features of shape and sur-
24 face with respect to men's, women's, and children's apparel, in-
25 eluding undergarments and outerwear.
26 revisions, ADAPTATIONS, AND REARRANGEMENTS
27 Sec. 208. Protection for a design under this title shall be available
28 notwithstanding the employment in the design of subject matter ex-
29 eluded from protection under section 202, if the design is a substantial
30 revision, adaptation, or rearrangement of said subject matter: Pro-
31 vided. That such protection shall be available to a design employing
32 subject matter protected under title I of this Act, or title 35 of the
33 United States Code or this title, only if such protected subject matt«r is
34 employed with the consent of the proprietor thereof. Such protection
35 shall be independent of any subsisting protection in subject matter
36 employed in the design, and shall not be construed as securing any
37 right to subject matter excluded from protection or as extending any
38 subsisting protection.
39 commencement of protection
40 Sec. 204. (a) The protection provided for a design under this title
41 shall commence upon the date when the design is first made public.
68
1 (b) A design is made public when, by the proprietor of the design
2 or with his consent, an existing useful article embodying the design
3 is anywhere publicly exhibited, publicly distributed, or offered for
4 sale or sold to the public.
5 TERM OF PROTECnOX
6 Sec. 205. (a) Subject to the provisions of this title, the protection
7 herein provided for a design shall continue for a term of five years
8 from the date of the commencement of protection as provided in sec-
9 tion 204:(a). but if a proper application for renewal is received by
10 the Administrator during the year prior to the expiration of the five-
11 year term, the protection herein provided shall be extended for an
12 additional period of five years from the date of expiration of the first
13 five years.
14 (b) If the design notice actually applied shows a date earlier than
15 the date of the commencement of protection as provided in section
16 L'U4:(a). protection shall teiminate as though the term had commenced
17 at the earlier date.
18 (c) Where the distinguishing elements of a design are in substan-
19 tially the same form in a number of different useful articles, the
20 design shall be protected as to all such articles when protected as
21 to one of them, but not more than one registration shall be required,
as provided in this title all rights under this title in said design shall
Upon expiration or termination of protection in a particular design
24 terminate, regardless of the number of different articles in which thft
25 design may have been utilized during the term of its protection.
26 THE DESIGN NOTICE
27 Sec. 206. (a) Whenever any design for which protection is sought
28 under this title is made public as provided in section 204(b), the
29 proprietor shall, subject to the provisions of section 207. mark it or
30 have it marked legibly with a design notice consisting of the following
31 three elements :
32 (1) the words "Protected Design", the abbreviation "Prot'd
33 Des." or the letter "D" within a circle thus @ ;
34 (2) the year of the date on which the design was first made
35 public ; and
36 (3) the name of the proprietor, an abbreviation by which the
37 name can be recognized, or a generally accepted alternative desig-
38 nation of the proprietor; any distinctive identification of the
proprietor may be used if it has been approved and recorded by
22
23
39
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67
1 the Administrator before the design marked with such identifica-
2 t ion is made public.
3 After registration the registration number may be used instead of
4 the elements specified in (2) and (3) hereof.
5 (b) The notice shall be so located and applied as to give reasonable
6 notice of design protection while the useful article embodying the
7 design is passing through its normal channels of commerce. This re-
8 quirement may be fulfilled, in the case of sheetlike or strip materials
9 bearing repetitive or continuous designs, by application of the notice
10 to each repetition, or to the margin, selvage, or reverse side of the ma-
ll terial at reasonably frequent intervals, or to tags or labels affixed to
12 the material at such intervals.
13 (c) '\\nien the proprietor of a design has complied with the provi-
14 sions of this section, protection under this title shall not be affected
15 by the removal, destruction, or obliteration by others of the design
16 notice on an article.
lY EFFECT OF OMISSION OF NOTICE
18 Sec. ^OT. The omission of the notice prescribed in section 206 shall
19 not cause loss of the protection or prevent recovery for infringement
20 against any person who, after written notice of the design protection,
21 begins an undertaking leading to infringement: Provided, That such
22 omission shall prevent any recovery imder section 222 against a person
23 who began an undertaking leading to infringement before receiving
24 written notice of the design protection, and no injunction shall be
25 had unless the pi-oprietor of the design shall reimburse said person
26 for any reasonable expenditure or contractual obligation in connection
27 with such undertaking incurred before written notice of design protec-
28 tion, as the court in its discretion shall direct. The burden of proving
29 written notice shall be on the proprietor.
30 INFRINGEMENT
31 Sec. 208. (a) It shall be infringement of a design protected under
32 this title for any person, without the consent of the proprietor of
33 the design, within the United States or its territories or possessions
34 and during the term of such protection, to —
35 (1) make, have made, or import, for sale or for use in trade,
36 any infringing article as defined in subsection (d) hereof; or
37 (2) sell or distribute for sale or for use in trade any such
38 infringing article : Provided, however, That a seller or distributor
39 of any such article who did not make or import the same shall be
40 deemed to be an infringer only if —
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1 (i) he induced or acted in collusion with a manufacturer to
2 make, or an importer to import such article (merely purchas-
3 ing or giving an order to purchase in the ordinary course of
4 business shall not of itself constitute such inducement or
5 collusion) ; or
6 (ii) he refuses or fails upon the request of the proprietor
7 of the design to make a prompt and full disclosure of his
8 source of such article, and he ordei-s or reordei-s such article
9 after having received notice by registered or certified mail
10 of the protection subsisting in the design.
11 (b) It shall be not infringement to make, have made, import, sell,
12 or distribute, any article embodying a design created without knowl-
13 edge of, and copying from, a protected design.
14 (c) A person who incorporates into his own product of manufacture
15 an infringing article acquired from others in the ordinary course of
16 business, or who, without knowledge of the protected design, makes or
17 processes an, infringing article for the account of another person in the
18 ordinary course of business, shall not be deemed an infringer except
19 under the conditions of clauses (i) and (ii) of paragraph (a) (2) of
20 this section. Accepting an order or reorder from the source of the in-
21 fringing article shall be deemed ordering or reordering within the
22 meaning of clause (ii) of paragraph (a) (2) of this section.
23 (d) An "infringing article" as used herein is any article, the design
24r of which has been copied from the protected design, without the con-
25 sent of the proprietor: Provided, however, That an illustration or
26 picture of a protected design in an advertisement, book, periodical,
27 newspaper, photograph, broadcast, motion picture, or similar medium
28 shall not be deemed to be an infringing article. An article is not an
29 infringing article if it embodies, in common with the protected design,
30 only elements described in subsections (a) through (d) of section 202.
31 (e) The party alleging rights in a design in any action or proceed-
32 ing shall have the burden of affirmatively establishing its originality
33 whenever the opposing party introduces an earlier work which is
34 identical to such design, or so similar as to make a prima facie show-
35 ing that such design was copied from such work.
36 APPLICATION FOK REGISTRATION
37 Sec. 209. (a) Protection under this title shall be lost if application
38 for registration of the design is not made within six months after the
39 date on which the design was first made public as provided in section
40 304(b).
71
69
1 (b) Application for registration or renewal may be made by the
2 proprietor of the design.
3 (c) The application for registration shall be made to the Adminis-
4 trator and shall state (1) the name and address of the author or
5 authors of the design; (2) the name and address of the proprietor
6 if different from the author; (3) the specific name of the article, in-
7 dicating its utility ; (4) the date when the design was first made public
8 MS provided in section 204(b) ; and (5) such other information as may
9 be required by the Administrator. The application for registration
10 may include a description setting forth the salient features of the de-
ll sign, but the absence of such a description shall not prevent registra-
12 tion under this title.
13 (d) The application for registration shall be accompanied by a
14 statement under oath by the applicant or his duly authorized agent or
15 representative, setting forth that, to the best of his knowledge and be-
16 lief ( 1 ) the design is original and was created by the author or authors
17 named in the application ; (2) the design has not previously been regis-
18 tered on behalf of the applicant or his predecessor in title; (3) the de-
19 sign has been made public as provided in section 204(b) ; and (4) the
20 applicant is the person entitled to protection and to registration under
21 this title. If the design has been made public with the design notice
22 prescribed in section 206, the statement shall also describe the exact
23 form and position of the design notice.
24 (e) Error in any statement or assertion as to the utility of the article
25 named in the application, the design of which is sought to be regis-
26 tered, shall not affect the protection secured under this title.
27 (f ) Errors in omitting a joint author or in naming an alleged joint
28 author shall not affect the validity of the registration, or the actual
29 ownership or the protection of the design : Provided^ That the name of
30 one individual who was in fact an author is stated in the application.
31 Where the design was made within the regular scope of the author's
32 employment and individual authorship of the design is difficult or im-
33 iK>ssible to ascribe and the application so states, the name and address
34 of the employer for whom the design was made may be stated instead
35 of that of the individual author.
36 (g) The application for registration shall be accompanied by two
37 copies of a drawing or other pictorial representation of the useful
38 article having one or more views, adequate to show the design, in a
39 form and style suitable for reproduction, which shall be deemed a
40 part of the application.
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70
1 (h) Related useful articles having common design features may be
2 included in the same application under such conditions as may be pre-
3 scribed by the Administrator.
4 BENEFIT OF EARLIER FILING DATE IN FOREIGN COUNTRY
5 Sec. 210. An application for registiation of a design filed in this
6 country by any person who has, or whose legal representative or pred-
7 ecessor or successor in title has previously regularly filed an applica-
8 tion for registration of the same design in a foreign country which af-
9 fords similar privileges in the case of applications filed in the United
10 States or to citizens of tlie United States shall have the same effect
11 as if filed in this country on the date on which the application was
12 fii-st filed in any such foreign country, if the application in this country
13 is filed within six months from the earliest date on which any such
14 foreign application was filed.
15 OATHS AND ACKNOWLEDGMENTS
16 Sec. 211. Oaths and acknowledgments required by this title may be
17 made before any person in the United States authorized by law to
18 administer oaths, or, when made in a foreign country, before any
19 diplomatic or consular officer of the United States authorized to ad-
20 minister oaths, or before any official authorized to administer oaths in
21 the foreign country concerned, whose authority shall be proved by a
22 certificate of a diplomatic or consular officer of the United States, and
23 shall be valid if they comply with the laws of the state or country
24 where made.
25 EXAMINATION OF APPLICATION AND ISSUE OR REBTJSAL OF REGISTRATION
26 Sec. 212. (a) Upon the filing of an application for registration in
27 proper form as provided in section 209, and upon payment of the fee
28 provided in section 215, the Administrator shall determine whether
29 or not the application relates to a design which on its face appears to
30 be subject to protection under this title, and if so, he shall register the
31 design. Registration under this subsection shall be announced by
32 publication.
33 (b) If, in his judgment, the application for registration relates to
34 a design which on its face is not subject to protection under this title,
35 the Administrator shall send the applicant a notice of his refusal to
36 register and the grounds therefor. Within three months from the date
37 the notice of refusal is sent, the applicant may request, in writing, re-
38 consideration of his application. After consideration of such a request,
39 the Administrator shall either register the design or send the applicant
40 a notice of his final refusal to register.
73
71
1 (c) Any person who believes he is or will be damaged by a registra-
2 tion under this title may, upon payment of the prescribed fee, apply
3 to the Administrator at any time to cancel the registration on the
4 ground that the design is not subject to protection under the provisions
5 of this title, stating the reasons therefor. Upon receipt of an applica-
6 tion for cancellation, the Administrator shall send the proprietor of
7 the design, as shown in the records of the Office of the Administrator, a
8 notice of said application, and the pix>prietor shall have a period of
9 three months from the date such notice was mailed in which to present
10 arguments in support of the validity of the registration. It shall also
11 be within the authority of the Administrator to establish, by regula-
12 tion, conditions under which the opposing parties may appear and be
13 heard in support of their arguments. If, after the periods provided for
14 the presentation of arguments have expired, the Administrator deter-
15 mines that the ai^plicant for cancellation has established that the de-
16 sign is not subject to protection under the provisions of this title, he
17 shall order the registration stricken from the record. Cancellation
18 under this subsection shall be announced by publication, and notice of
19 the Administrator's final determination with respect to any application
20 for cancellation shall be sent to the applicant and to the proprietor
21 of record.
22 (d) Remedy against a final adverse determination under subpara-
23 graphs (b) and (c) above may be had by means of a civil action
24 against the Administrator pursuant to the provision of section 1361 of
25 title 28, United States Code, if commenced within such time after such
26 decision, not less than 60 days, as the Administrator appoints.
27 (e) When a design has been registered under this section, the lack
28 of utility of any article in which it has been embodied shall be no
29 defense to an infringement action under section 220, and no ground
30 for cancellation under subsection (c) of this section or under sec-
31 tion 223.
32 CERTIFICATION OF REGISTILVHOX
33 Sec. 213. Certificates of registration shall be issued in the name of
34 the United States under the seal of the Office of the Administrator and
35 shall be recorded in the official records of that Office The certificate
36 shall state the name of the useful article, the date of filing of the appli-
37 cation, the date on which the design was first made public as pro\ided
in section 204(b) or any earlier date as set forth in section 205(b), and
shall contain a reproduction of the drawing or other pictorial repre-
38
39
40 sentation showing the design. Where a description of the salient fea-
57-786 O - 76 - pt. 1
74
72
1 tures of the desifrr^ appears in the application, this description shall
2 also appear in the certificate. A renewal certificate sliall contain the
3 date of renewal registration in addition to the foi-egoing. A certificate
4 of initial or renewal registration shall be admitted in any court as
5 prima facie evidence of the facts stated therein.
6 PUBLICATION OF ANNOUNCEMENTS AND INDEXES
7 Sec. 214. (a) The Administrator shall publish lists and indexes of
8 registered designs and cancellations thereof and may also publish the
9 drawing or other pictorial representations of registered designs for
10 sale or other distribution.
11 (b) The Administrator shall establish and maintain a file of the
12 drawings or other pictorial representations of registered designs,
13 which file shall be available for use by the public under such condi-
14; tions as the Administrator may prescribe.
15 FEES
16 Sec. 215. (a) There shall be paid to the Administrator the follow-
17 ing fees :
18 (1) On filing each application for registration or for renewal of
19 registration of a design, $15.
20 (2) For each additional related article included in one application,
21 $10.
22 (3) For recording assignment, $3 for the first six pages, and for
23 each additional two pages or less, $1.
24 (4) For a certificate of correction of an error not the fault of the
25 Office, $10.
26 ( 5 ) For certification of copies or records, $1 .
27 (6) On filing each a^jplication for cancellation of a registration,
28 $15.
29 (b) The Administrator may establish charges for materials or serv-
30 ices furnished by the Office, not specified above, reasonably related to
31 the cost thereof.
32 REGULATIONS
33 Sec. 216. The Administrator may establisli regulations not incon-
34 sistent with law for the administration of this title.
35 COPIES OF RECORDS
36 Sec. 217. Upon payment of the prescribed fee, any person may
37 obtain a certified copy of any official record of the Office of the Admin-
38 istrator, which copy shall be admissible in evidence with the same effect
39 as the original.
75
73
1 CORRECTION OF ERRORS IN CERTIFICATES
2 Sec. -218. The Administratoi' may correct any error in a registration
3 incurred through the fault of the Office, or, upon payment of the re-
4 quired fee, any error of a clerical or typographical nature not the fault
5 of the Office occurring in good faith, by a certificate of correction under
6 seal. Such registration, together with the certificate, shall thereafter
7 have the same effect as if the same had been originally issued in such
8 corrected form.
9 OWNERSHIP AND TRANSFER
10 Sec. 219. (a) The property right in a design subject to protection
11 under this title shall vest in the author, the legal representatives of a
12 deceased author or of one under legal incapacity, the employer for
13 whom the author created the design in the case of a design made
14 within the regular scope of the author's employment, or a person to
15 whom the rights of the author or of such employer have been trans-
16 ferred. Tlie person or persons in whom the property right is vested
17 shall be considered the proprietor of the design.
18 (b) The property right in a registered design, or a design for which
19 an application for registration has been or may be filed, may be as-
20 signed, granted, conveyed, or mortgaged by an instrument in writing,
21 signed by the proprietor, or may be bequeathed by will.
22 (c) An acknowledgement as provided in section 311 shall be prima
23 facie evidence of the execution of an assignment, grant, conveyance,
24 or mortgage.
25 (d) An assignment, grant, conveyance, or mortgage shall be void
26 as against any subsequent purchaser or mortgage for a valuable con-
27 sideration, without notice, unless it is recorded in the Office of the
28 Administrator within three months from its date of execution or prior
29 to the date of such subsequent purchase or mortgage.
30 REMEDY FOR INFRINGEMENT
31 Sec. 220. (a) The proprietor of a design shall have remedy for in-
32 fringement by civil action instituted after issuance of a certificate of
33 registration of the design.
34 (b) The proprietor of a design may have judicial review of a final
35 refusal of the Administrator to register the design, by a civil action
36 brought as for infringement if commenced within the time specified
37 in section 212 (d) , and shall have remedy for infringement by the same
38 action if the court adjudges the design subject to protection under this
39 title: Provided, That (1) lie has previously duly filed and duly pros-
76
74
1 edited to such final refusal an application in proper form for reg^is-
2 tration of the designs, and (2) he causes a copy of the complaint in
3 action to be delivered to the Administrator within ten days after the
4 commencement of the action, and (3) the defendant has committed acts
5 in respect to the design which would constitute infringement with
6 respect to a design protected under this title.
7 INJUNCTION
8 Sec. 221. The several courts having jurisdiction of actions under
9 this title may grant injunctions in accordance with the principles of
10 equity to prevent infringement, including in their discretion, prompt
11 relief by temporary restraining orders and preliminary injunctions.
12 RECOVERY FOR INFRINGEMENT, AND SO FORTH
13 Sec. 222. (a) Upon finding for the claimant the court shall award
14 him damages adequate to compensate for the infringement, but in
15 no event less than the reasonable value the court shall assess them.
16 In either event the court may increase the damages to such amount,
17 not exceeding $5,000 or $1 per copy, whichever is greater, as to the
18 court shall appear to be just. The damages awarded in any of the
19 above circumstances shall constitute compensation and not a penalty.
20 The court may receive expert testimony as an aid to the determination
21 of damages.
22 (b) No recovery under paragraph (a) shall be had for any infringe-
23 ment committed more than three years prior to the filing of the
24 complaint.
25 (c) The court may award reasonable attorney's fees to the prevail-
26 ing party. The court may also award other expenses of suit to a
27 defendant prevailing in an action brought under section 220(b).
28 (d) The court may order that all infringing articles, and any plates,
29 molds, patterns, models, or other means specifically adapted for mak-
30 ing the same be delivered up for destruction or other disposition as
31 the court may direct.
32 POWER OF COURT OVER REGISTRATION
33 Sec. 223. In any action involving a design for which protection is
34 sought under this title, the court when appropriate may order registra-
35 tion of a design or the cancellation of a registration. Any such order
36 shall be certified by the court to the Administrator, who shall make
37 appropriate entry upon the records of his Office.
38 LIABILITY FOR ACTION ON REGISTRATION FRAUDULENTLY OBTAINED
39 Sec 224. Any person who shall bring an action for infringement
40 knowing that registration of the design was obtained by a false or
77
75
1 fraudulent representation materially affecting the rights under this
2 title, shall be liable in the sum of $1,000, or such part thereof as the
3 court may determine, as compensation to the defendant, to be charged
4 against the plaintiff and paid to the defendant, in addition to such
5 costs and attorney's fees of the defendant as may be assessed by the
6 court.
7 PENALTY FOR FALSE MARKING
8 Sec. 225. (a) Whoever, for the purpose of deceiving tlie public,
9 marks upon, or applies to, or uses in advertising in connection with any
10 article made, used, distributed, or sold by him, the design of which
11 is not protected under this title, a design notice as specified in section
12 306 or any other words or symbols importing that the design is pro-
13 tected mider this title, knowing that the design is not so protected,
14 shall be fined not more than $500 for every such offense.
15 (b) Any person may sue for the penalty, in which event, one-half
16 shall go to the person suing and the other to the use of the United
17 States.
\g PENALTY FOR FALSE REPRESENTATION
19 Sec. 226. Whoever knowingly makes a false representation mate-
20 rially affecting the rights obtainable under this title for the purpose
21 of obtaining registration of a design under this title shall be fined
22 not less than $500 and not more than $1,000, and any rights or privi-
23 leges he may have in the design under this title shall be forfeited.
24 RELATION TO COPYRIGHT LAW
25 Sec. 227. (a) Nothing in this title shall affect any right or remedy
26 now or hereafter held by any person under title I of this Act.
27 (b) When a pictorial, graphic, or sculptural work in which copy-
28 right subsists under title I of this Act is utilized in an original oma-
29 mental design of a useful article, by the copyright proprietor or under
30 an express license from him, the design shall be eligible for protection
31 under the provisions of this title.
32 RELATION TO PATENT LAW
33 Sec. 228. (a) Nothing in this title shall affect any right or remedy
34 available to or held by any person under title 35 of the United States
35 Code.
36 (b) The issuance of a design patent for an ornamental design for
37 an article of manufacture under said title 35 shall terminate any pro-
38 tection of the design under this title.
39 COMMON LAW AND OTHER RIGHTS UNAFFECTED
40 Sec. 229. Nothing in this title shall annul or limit (1) common law
41 or other rights or remedies, if any, available to or held by any person
78
76
1 with respect to a design which has not been made public as provided
2 in section 304(b), or (2) any trademark right or right to be protected
3 against unfair competition.
4 ADMINISTRATOR
5 Sec. 230. The Administrator and Office of the Administrator re-
6 ferred to in this title shall be such officer and office as the President
7 may designate.
8 SEVERABILiry CLAUSE
9 Sec. 231. If any provision of this title or the application of such
10 provision to any person or circumstance is held invalid, the remainder
11 of the title or the application to other persons or circumstances shall
12 not be affected thereby.
13 AMENDMENT OF OTHER STATUTES
14 Sec. 232. (a) Subdivision a (2) of section 70 of the Bankruptcy
15 Act of July 1, 1898, as amended (11 U.S.C. 110(a)), is amended
16 by inserting "designs," after "patent rights".
17 ( b ) Title 28 of the United States Code is amended —
18 (1) by inserting "designs," after "patents," in the first sentence
19 of section 1338(a) ;
20 (2) by inserting ", design," after "patent" in the second sen-
21 tence of section 1338 ( a) ;
22 (3) by inserting "design," after "copyright," in section 1338
23 (b) ;
24 (4) by inserting "and registered designs" after "copyrights" in
25 section 1400; and
26 (5) by revising section 1498 (a) to read as follows :
27 "(a) Whenever a registered design or invention is used or manu-
28 factured by or for the United States without license of the owner
29 thereof or lawful right to use or manufacture the same, the owner's
30 remedy shall be by action against the United States in the Court of
31 Claims for the recovery of his reasonable and entire compensation
32 for such use and manufacture.
33 "For the purposes of this section, the use or manufacture of a
34 registered design or an invention described in and covered by a patent
35 of the United States by a contractor, a subcontractor, or any person,
36 firm, or corporation for the Grovernment and with the authorization
37 or consent of the Government, shall be construed as use or manufac-
38 ture for the United States.
39 "The court shall not award compensation under this section if
40 the claim is based on the use or manufacture by or for the United
41 States of any article owned, leased, used by, or in the possession of
79
77
1 the United States, prior to, in the case of an invention, July 1, 1918,
2 and in the case of a registered design, July 1, 1978.
3 "A Government employee shall have the right to bring suit against
4 the Government under this section except where he was in a position
5 to order, influence, or induce use of the registered design or invention
6 by the Government. This section shall not confer a right of action on
7 any registrant or patentee or any assignee of such registrant or pat-
8 entee with respect to any design created by or invention discovered or
9 invented by a person while in the employment or service of the United
10 States, where the design or invention was related to the official func-
11 tions of the employee, in cases in which such functions included
12 reseaiTh and development, or in the making of which Government
13 time, materials, or facilities were used."
14 TIME OF TAKING EFFECT
15 Sec. 233. This title shall take effect one year after enactment of this
16 Act.
17 NO RETROACTIVE EFFECT
18 Sec. 234. Protection under this title shall not be available for any
19 design that has been made public as provided in section 204(b) prior
20 to the effective date of this title.
21 SHORT TIIXE
22 Sec. 235. This title may be cited as ''The Design Protection Act of
23 1975".
80
94tu congress
1st Session
H. R. 5345
IN THE HOUSE OF REPKESENTATIVES
Makcii 21,1975
Mr. Danif.lson introduced the following bill ; which was referred to the Com-
mittee on the Judiciary
To amend the Copyright Act of 1909, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 fives of the United States of America in Congress assembled,
3 That til is Act may be cited as the "Performance Iliglits
4 Amendment of 1975".
5 Sec. 2. The first section of title 17, United States Code,
6 is amended —
*
7 (1) l)y striking out "and" where it appears at the
8 end of suhsections (c) and (d) ;
9 (2) by striking out the period at the end of sub-
10 section (e) and inserting in lieu thereof a semicolon and
11 "and";
81
2
1 (3) by striking out subsection (f) and inserting in
2 lieu thereof the following :
3 "(f)(1) To perform publicly for profit and to reproduce
4 and distribute to the public by sale or other transfer of owner-
5 ship, or by rental, lease, or lending, any reproduction of a
6 copyrighted work which is a sound recording: Provided,
7 That the exclusive rights of the owner of a copyright in a
8 sound recording to reproduce and perform it are limited to
9 the rights to duplicate the sound recording in a tangible
10 form that directly or indirectly recaptures the actual sounds
11 fixed in the recording, and to perform those actual sounds:
12 Provided further, That these rights do not extend to the
13 making or duplication of another sound recording that is an
14 independent fixation of other sounds, or to the perfomiance
15 of other sounds, even though such sounds imitate or simulate
16 those in the copyrighted sound recording; or to reproduc-
17 tions made by broadcasting organizations exclusively for
18 their own use.
19 " (2) Where the copyrighted sound recording has been
20 distributed to the public under the authority of the copyright
21 owner, the public performance of the sound recording shall
22 be subject to compulsory licensing in accordance with the
23 provisions of section 33 of this title." ; and
24 (4) by inserting immediately before the period at
25 the end of the last sentence of such section (relating to
82
o
O
1 coin-operated machines) a comma and the following:
2 "except that the provisions of this sentence shall not
3 apply to the public performance of a sound recording
4 under subsection (f ) of this section".
5 Sec. 3. (a) Chapter 1 of title 17, United States Code,
6 is amended by adding at the end thereof the following new
7 section:
8 "§33. Compulsory licensing; royalties
9 "(a) The annual royalt}^ fees for the compulsory li-
10 cense provided for in section 1 (f) (2) of this title may,
11 at the user's option, be computed on either a blanket or a
12 prorated basis. x\lthough a negotiated license may be substi-
13 tuted for the compulsory license prescribed by this subsec-
11 tion, in no case shall the negotiated rate amount to less than
15 the following apphcable rate or payment :
16 " (1) For a radio broadcast station hcensed by the
17 Tederal Communications Commission, the royalty rate
18 or payment shall be as follows :
19 "(A) in the case of a broadcast station with
20 gross receipts from its advertising sponsors of more
21 than $25,000 but less than $100,000 a year, the
22 yearly performance royalty payment shall be $250 ;
23 or
24 "(B) in the case of a broadcast station with
25 gross receipts from its advertising sponsors of more
83
4
1 than $100,000 hut less tlian $200,000 a year, the
2 yearly performance royalty payment shall he $750 ;
3 or
4 " (C) in the case of a hroadcast station with
5 gross receipts from its advertising sponsors of more
6 than $200,000 a year, the yearly hlanket rate shall
7 he 1 per centum of the net receipts from the adver-
8 tising sponsors during the applicahle period, and the
9 alternative prorated rate is a fraction of 1 per centum
10 of such net receipts, taking into account the amount
11 of the station's commercial time devoted to play-
12 ing copyrighted sound recordings,
13 "(2) For a television broadcast station licensed hy
14 the Federal Communications Commission, the royalty
15 rate or payment shall be as follows :
16 _ " (A) in the case of a broadcast station with
17 gross receipts from its advertising sponsors of more
18 than $1,000,000 but less than $4,000,000 a year,
19 the yearly performance royalty payment shall be
20 $750 ; or
21 "(B) in the case of a broadcast station with
22 gross receipts from its advertising sponsors of more
23 than $4,000,000 a year, the yearly performance
24 i"oyalty payment shall be $1,500.
25 "(3) For background music services and other
84
5
1 transmitters of performances of sound recordings, the
2 yt^arly blanket rate is 2 per centum of the gross receipts
3 from subscribers or others who pay to receive the trans-
4 mission during the applicable period, and the alternative
5 prorated rate is a fraction of 2 per centum of such gross
6 receipts, taking into account the proportion of time
7 devoted to musical performances by the transmitter dur-
8 ing the applicable period.
9 " (4) For an operator of coin-operated phonorecord
10 players, the yearly performance royalty payment shall
11 be $1 for each phonorecord player.
12 "(5) For all other users not otherwise exempted,
13 the blanket rate is $25 per year for each location at
14 which copyrighted sound recordings are performed,
15 and the alternative prorated rate shall be based on the
1^ number of separate performances of such works during
1''' the year and shall not exceed $5 per day of use.
■^^ " (6) No royalty fees need be paid for a compulsory
19 license for the public performance of copyrighted sound
20 recordings by a radio broadcast station where its annual
21 gross receipts from advertising sponsors were less than
22 $25,000, by a television broadcast station where its an-
23 nual gross receipts from advertising sponsors were less
24 than $1,000,000, or by a background music service or
2^ other transmitter of performances of somid recordings
85
6
1 where its annual gross receipts from subscribers or others
2 who pay to receive the transmission were less than
3 $10,000.
4 "(b) The annual royalty fees provided in subsection (a)
5 shall be applicable until such time as the royalty rate is
6 agreed upon by negotiation between the copyright owner and
7 the hcensee, or their designated representatives: Provided,
8 That the annual royalty fees provided for in subsection (a)
9 shall be applicable for a period of not less than two years
10 following the date of enactment of the Performance Rights
11 Amendment of 1975. In the event that the parties or their
12 representatives are unable to agree upon a royalty rate pur-
13 suant to negotiation, the public performance of the sound
14 recording shall be subject to compulsory licensing at a royalty
15 rate and under terms which shall be set by an arbitration
16 panel composed of three members of the American Arbitra-
17 tion Association, of which one member of the panel shall be
18 selected separately by each of the parties in disagreement,
]^9 and one member shall be selected jointly by the parties in
20 disagreement.
21 "(c) The royalty fees collected pursuant to this section
22 shall be divided equally between the performers of the
23 sound recording and the copyright owners of the sound
24 recording. Neither a performer nor a copyright owner may
25 assign his right to the royalties provided for in this section
86
7
1 to the copyright owner or performer of tlie sound recording,
2 respectively.
3 " (cl) -^s used in this section, the term —
4 "(1) 'performers' means musicians, singers, con-
5 ductors, actors, naiTators, and others whose performance
6 of a liteiary, musical, or dramatic work is embodied in a
7 sound recording ; and
8 " (2) 'net receipts from advertising sponsors' means
9 gross receipts from advertising sponsors less any com-
10 missions paid ])y a broadcast station to advertising
11 agencies.".
12 (b) The analysis of such chapter is amended by add-
13 ing at the end thereof the following new item :
"33. Compulsory licensing; royalties.".
87
94th congress
IsT Session
H. It 4965
IN THE HOUSE OF REPRESENTATIVES
March 14,1975
Mr. Won Pat introduced the following bill ; which was referred to the Com-
mittee on the Judiciary
A BILL
For the amendment of the Copyright Law, title 17 of the
United States Code.
1 Be it enacted by the Senate and House of Representa-
2 fives of the United States of America in Congress assembled,
3 That title 17 of the United States Code, entitled "Copy-
4 rights", is hereby amended by adding new section 101 (f)
5 to read as follows :
6 " (f ) For all the purposes of the provisions of this
7 title deaUng with infringements of copyright, including crimi-
8 nal prosecution pursuant to section 104 of this title, a
9 person shall not infringe or have infringed the copyright in
10 any work protected under the copyright laws of the United
11 States who,
88
2
1 " ( 1 ) f or the pui-pose of transmission on a noncon-
2 tiguous area cable television system, has made or
3 shall cause to be made, or has transmitted or shall
4 cause to be transmitted, a videotape of a television pro-
5 gram or programs broadcast by one or more television
6 stations hcensed by the Federal Conomunications
7 Commission; and when after the enactment of this
8 subsection :
9 " (i) the videotape is transmitted no more
10 than one time, without deletion of any material
11 including commercials, on any such system; and
12 " (ii) an owner or oflScer of such facility erases
13 or destroys, or causes the erasure or destruction of
1^ such videotape; and
1''^ " (iii) subject to the provisions of subparagraph
^C (2) of this subsection, on or before the end of each
l'^ calendar quarter, an owner or officer of such system
18 executes an aflSdavit attesting to the erasure or
19 destruction of all such videotapes made or used dur-
20 ing the 'preceding quarter; and
21 "(iv) said owner or officer places or causes said
22 affidavit, or the affidavit received pursuant to section
23 101 (f) (2) (ii) of this title, to be placed in a file,
24 open to public inspection, at such system's main
25 oflSce in the community where the transmission is
89
3
;j' made or in the nearest community where such sys-
2 ' tern maintains an office.
3- *'(2) Nothing herein shall prevent any such system,
4 pursuant to written contract, from transferring the video-
5 tapes to another such system provided that:
•6 " (i) said Vv-ritten contract is placed in the file,
7 open to public inspection, required hereunder; and
Q- " (ii) the last such facility transmitting the pro-
9 grams shall comply with the provisions of section
10 101 (f) (1) (ii) through (iv) of this title, and shall
11 " (iii) provide a copy of the affidavit required
12r hereunder to each such system making a previous
13 'transmission of the same \ideotape.
14 " (3) As used in this subsection, the following terms
15 and their variant forms mean the following:
16 "(i) a 'transmission' is the distribution by a
17 noncontiguous area cable television system of a
18 videotape to its subscribers and is the equivalent of
19 the carriage of broadcast signals for all the purposes
20 of the rules and regulations of the Federal Oom-
21 munications Commission.
22 "(ii) a 'noncontiguous area cable television* is
23 a facility located in any State, territor}^ trust ter-
24 ritory, or possession not within the boundary of
25 the fortj^-eight contiguous continental States, that
57-786—76 7
90
4
1 receives signals transmitted or makes or obtains
2 videotapes of programs broadcast by one or more
3 'television broadcast stations licensed by the Federal
4 Communications Commission and delivere such, sig-
5 nals or programs by wires, cables, or other commu-
6 nications channels to subscribing members of the
7 public who pay for such service.
8 "(iii) A. 'videotape' is the reproduction of the
9 images and sounds of a program or programs, in-
10 eluding commercials, broadcast by a television sta-
ll tion licensed by the Federal Communications Com-
^2 mission, regardless of the nature of the material
13 objects, such as tapes or motion pictures, in which
•^^ the reproduction is embodied.
91
TESTIMONY OF JOHN G. LORENZ, ACTING LIBRARIAN OF CON-
GRESS, ACCOMPANIED BY ABRAHAM L. KAMINSTEIN, FORMER
REGISTER OF COPYRIGHTS AND HONORARY CONSULTANT IN
COPYRIGHT AT THE LIBRARY OF CONGRESS, AND BARBARA
RINGER, REGISTER OF COPYRIGHTS, THE LIBRARY OF CONGRESS
Mr. LoREXz. Mr. Chairman, T am Jolin Lorenz, the Acting Librarian
of Congress. It is an honor for me to appear as the opening wit-
ness at these historic hearings, and to urge your favorable considera-
tion of H.R. 22'23, the bill for general revision of the copyright huv.
In 1905, President Theodore Roosevelt called upon Congress to'
bring together and completely revise the copyright laws of the United
States, After long hearings and several years of controversy Congress
responded by enacting a new statute on the last day of President
Roosevelt's administration. The act of March 4, 1909 remains, 66 years
later, the governing American copyright law.
President Theodore Roosevelt's message of 1905 is still valid for us
today. He wrote :
Our copyright laws urgently need revision. They are imperfect in definition,
confused and inconsistent in expression; they omit provision for many articles
which, under modern reproductive processes, are entitled to protection ; they
impose hardships upon the copyright proprietor which are not essential to the
fair practices of the public ; they are difficult for the courts to interpret and
impossible for the Copyright Office to administer with satisfaction to the public.
The aptness of Roosevelt's message today is not as ironic as it might
seem. Legislation is often specific. It grows out of individual circum-
stances and relates to definite purposes at definite times and conse-
Cj[uently is subject to change.
As time passes, the ability of courts to adapt the letter of the law
to each change diminishes. Cardozo put it well : ""The law tends to
expand to the limits of its logic." The logical limits of the present
copyright laws have long since been reached and exceeded.
In recent years there have been several important Supreme Court
decisions illustrating the inadequacy of the 1909 act. At the same
time, administrative regulations cannot cure the law's inequities and
private understandings or agreements cannot settle the crucial issues
of copyright.
Everyone affected by copyright or concerned with its administra-
tion is looking to Congress for action. New legislation, a new order-
ing of the relationships that depend upon copyright, is required, and
only Congress can do the job.
As Acting Librarian of Congress I am proud of the role that the
Copyright Office has played for many years in the efforts to reform
the existing copyright system. I am particularly pleased to see Abra-
ham L. Kaminstein here, who as Register of Copja-ights from 1960 to
1971 was largely instrumental in planning the present revision effoit.
But beyond these efforts the basic responsibility, with its broad social
and indeed philosophical implications, continues to fall upon your
subcommittee.
Mr. Chairman, you have been involved in this work for well over
a decade, and more than most, you appreciate the infinite complexity
of many of the issues treated in H.R. 2223. Ten years ago the former
92
Librarian of Congress, L. Quincy Mumford, sat before this subcom-
mittee and said :
Copyright law is by nature a diflScult and complex subject, and my under-
standing of its details is imperfect, to say the least. But, like any other intricate
field of knowledge, there are certain simple and fundamental principles under-
lying our copyright system, and their importance cannot be overemphasized.
As Dr. Mumford said, one simple principle underlying copyright
is the encouragement and reward of individual creativity. This princi-
ple is, I would suggest, a basic corollary of the principle of freedom
of speech and press. It is a recognition that those parts of our civil-
ization that have endured are the product of individual creators, and
the principle of copyright is basic to civilization itself.
But the principle of copyright is also rooted in the present, and the
practical concerns of authors and all those who disseminate and use
their works. Since 1909, the pace of technological innovation, espe-
cially in commimicationSj has been breathtaking.
In these hearings you will hear those who argue, forcefully and in
good faith, that technology threatens to strip copyright of its meaning
and value. Others, in equally good faith, will stress that copyright is
impeding the application of technology to the growing informa-
tional needs of society.
Congress must chart the way, and, difficult as that task is, it can be
made easier, I believe, by keeping always in mind the underlying
social premises of copyright in a free society.
Kecognizing the equities on both sides of the arguments you will be
hearing, the Library of Congress urges favorable consideration of
H.R. 2223. This legislation is the culmination of 15 years of pains-
taking negotiation and compromise.
It does not provide all of the answers, but it does provide a modern
framew^ork for growth and change: New tools for the courts, the
Copyright Office, for the authors and the users of copyrighted mate-
rials, to meet the challenges of the future.
This is the kind of effort that involves little widespread recognition
and a great deal of difficulty and toil. But I am convinced that, when
all is said and done, your work will have a significant impact on the
lives of all Americans — those who create and those w^hose lives are
shaped and changed by their creations.
As the present administrator of the world's greatest collection of
those creative works, I believe that your success in this endeavor will
be one of your greatest legislative achievements.
Thank you very much.
Mr. Kastenmeier. Thank you, Mr. Lorenz.
Mr. Kaminstein ?
Ms. Ringer. If I may, Mr. Chairman, I would like to ask the privi-
lege of introducing Mr. Kaminstein.
Mr. Kastenmeier. Yes, of course, Ms. Ringer.
Ms. Rtn(;er. The current program for general revision of the
copyright law started in the fifties under Arthur Fisher, who was a
great Register of Copyrights. He charted a course which we en-
deavored to follow, and he put his personal stamp on the revision
program.
Arthur Fisher died in 1960, at a crucial point in the revision pro-
gram, and was succeeded by Abraham L. Kaminstein. It is hard to
93
realize how difficult it was for Kami to take over an ongoing pro-
gram of that sort, one that had as much of a personal stamp on it
as the revision program had in 1960, and to make the changes that
were necessary to make it go, and eventually to chart a cliiferent
course— because tliere were many things in the original planning
that had to be changed.
All of these Mr. Kaminstein did. He made a number of personal
sacrifices, including sacrifices in his health. The revision program cer-
tainly would have gone nowhere without his disinterested optimism
and his willingness to explore every possibility, his spirit of good
will, and his personal integrity. He earned everyone's respect.
As a personal note, he hired me out of law school, and everything
I know about copyright I either owe to him directly or to the oppor-
tunities he gave me to learn. He is a loyal friend and a noble human
being, and it is a great honor for me to introduce him.
Mr. Kastenmeier. Mr. Kaminstein ?
Mr. Kaminstein. Mr. Chairman and members of the subcommittee,
my name is Abraham Kaminstein, and I hold the position of
Honorary Consultant in Copyright at the Library of Congress. De-
spite this fancy title, I must state that I appear before you representing
only myself and without any brief except for my own profound belief
in the value of the legislation you are considering.
I am privileged and pleased to appear before you in support of
H.R. 2223 for the general revision of the copyright law. This legisla-
tion, which many of you are now involved with for the first time, has
been for me almost a life's work.
Before my retirement in 1971 I spent 23 years in the Copyright
Office, the last 11 of them as the Register of Copyrights. Interestingly
enough, it is almost exactly 20 years since my immediate predecessor,
Arthur Fisher, asked for and was granted funds by Congress to ini-
tiate studies leading to the overall revision of the copyright laws.
Published between 1956 and 1960, 35 major studies examined cur-
rent interpretations of the 1909 Copyright Act, analyzed its short-
comings and inequities and set out alternative measures for reform.
Well over a decade later, they still remain vital and enduring con-
tributions to our law.
In the early 1960's the Copyright Office sponsored a series of round-
table discussions based on recommendations made in the 1961 Reg-
ister's Report on Copyright Revision and the preliminary legislative
drafts that began to emerge. The talks filled four volumes ; they were
sometimes difficult, but they did succeed in identifying areas of agree-
ment and dispute, thus sharpening the issues.
By 1964, it was possible to submit a bill for the general revision of
the law, and to participate in hearings in 1965 before your subcom-
mittee and under your dedicated chairmanship. Looking back to 1965.
I am startled by the scope of our achievements and I have become a bit
philosophical about the problems we failed to recognize at the tinie.
As incredible as it may seem now, our first proposals said nothing
about cal)le television, and photocopying was not regarded as an issue
which required special legislatiA^e provisions. Some of these problems
were aired in the extensive hearings which you conducted. Mr. Chair-
man, and new provisions were added, and when, in 1967, the House
passed the bill, we seemed well on our way to success.
94
We all know that the entire bill reached an impasse in the Senate
because of the inability to solve the issue of cable television. I must
confess that in 1968, recognizing that nothing was going to move
unless somehow the CATV issue could be solved or dealt with
separately, I gave in to some despair.
Testifying before the Senate Subcommittee on Patents, Trademarks
and Copyrights, I said that I had been musing on Yeats' poem, "To a
Friend Whose Work Has Come to Nothing." Nothing much to encour-
age me happened for a long time.
Certainly I feci no such despair today.
At the last session of Congress, the Senate passed the revision bill
by a margin of 70-1, and every indication seems to point to a consensus
in that body that this is a measure whose time, at long last, has come.
Although insufficient time remained in the last session for House
consideration, the status of the general revision legislation was one of
the points covered in your subcommittee's hearings on November 26,
1974, on S. 3976, a short bill whose enactment effective December 31,
1974, appears to pave the way for favorable action in both Houses
during the current Congress.
I should like to close my statement by offering some personal obser-
vations based on years of involvement with copyright revision. I should
like to recall the constructive spirit of the 1965 hearings for I fer-
vently hope that they will be repeated in the work you begin today.
Nine j^ears ago. Mr. Chairman, your subcommittee met for 51 execu-
tive sessions, over a 7-month period, to prepare a bill for the full
Judiciary Committee.
Congressmen, members of a busy subcommittee, wei-e willing and
glad to spend an extraordinary amount of time and effort on a bill
that could not have meant much to them politically, that could not
gain them any votes. What made this extraoi'dinary effort possible, and
indeed successfid. was the prevailing spirit of compromise — construc-
tive and reasonable, rather than destructive and extreme. I called it
"An Experiment in Legislative Technique." It was the most exhilarat-
ing expei'ionce of my legal careei".
All of us are special pleaders, no matter how moral we feel our case
to be. For my part, I make no bones about favoring authors, com-
posers, and ai'tists. But I know, nevertlieless, that everyone must make
some compromise. My experience convinces me that there are no easy
sl)()rtcnts in cojjyriglit, and no side can afford the luxury of a com-
plete victory. Neither can we embrace categorical solutions; what they
possess in simplicity, they sacrifice in ordinar}' justice. What is needed
is a responsible and considered compromise, for only such a compromise
will best serve the interests of nil.
Tliis will require statesmanship of the highest order, and I hope you
will feel the personal satisfaction that comes with a job well done.
Thaiik you, jNIr. (^hairman.
]Mi'. Kastkn'meier. Thank you, Mr. Kaminstein, for a most eloquent
and personal statem.ent on a subject many regard as impersonal.
I am almost sorry, however, to mention that in 1966 we had 51
executive sessions over a 7-month period. You will detect some trepida-
tion among my subcommittee members who have not been through that
experience. [Laughter.]
j\Iuch of that work will not have to be redone, I expect. Perhaps
this is not the time, as I introduce the next witness, to conmiend people
95
before our task is completed for indeed historically one day I am sure
that the names of Fisher, Kaminstein, and Ringer will, in terms of
copyi'ight and its history of this country, liave an extraordinary place.
For my part, legislatively, I would like to recall that the chairman
of the full committee, Mr. Celler, who served Congress so well for so
many years, has always felt so deeply about and has been a very great
patron of copyriglit.
From the legislative standpoint I think he also deserves very special
recognition.
In any event, I would like to call on the person on whom we are going
to have to lean heavily, not only this morning but in days to come, in
resolving whatever of the issues still remain.
We would be very pleased to hear from our Register of Copyrights,
Ms. Barbara Ringer.
Ms. Ringer. Thank you very much, ]\fr. Chairman. I am accom-
panied by Dorothy Schrader, general counsel of the Copyright Office,
who I hope will get me out of trouble if I get into it.
The Copyright Office has prepared portfolios consisting of 19 fold-
ers. 18 of which deal with separate issues or chapters of sections of the
bill. Some are much more important than others. On the left side of
each folder we have put the relevant sections on the particular issue,
and on the right side we have tried to summarize the contents of the
bill, give some of the background of the provisions and analyze the
contents of the bill in a rather simple, brief way.
Some of the provisions of the bill, as you well know, Mr. Chairman,
do not yield their meaning readily on a first, or second, or even third
reading.
In any case T hope that they will be useful to the committee. They
are intended for reference and not as fundamental legislative history.
But I hope the material on the right side can l)e considered, in effect,
my statement on the issues that are involved at this point and be made
a part of the record of the hearings. I have also a prepared statement
which is for the record and I don't think I need to go into it in vast
detail because both you, Mr. Chaii'man, and Mr. Kaminstein, have
referred to the comments I have made in it.
I would, however, like to make a few points from it and then go on
to a summary of the principal issues speaking more or less from these
briefing papers.
[The material referred to appears in app. 2.]
As I see them now but without in any way trying to predict what
other witnesses will say during the course of these hearings because I
don't think anyone, no matter how close they are to the subject, can
do that
Mr. Kastenmeier. I urge you not to oversummarize. "We do hope
that — we regard your testimony as very important at the outset to
get certain frames of reference for the committee. Some of it may
be lost to us if it is confined exclusively to the record.
Ms. RiXGER. I take your point, Mr. Chairman. Then I will read
at least a major part of this statement.
[The prepared statement of Ms. Ringer follows :]
Statement of Barbara Ringer, Register of Copyrights
Mr. Chairman, I am Barbara Ringer, Register of Copyrights in the Copyright
Office of the Library of Congress. I appear today in support of H.R. 2223, to
review its long and difficult legislative history, and to try to answer any questions
you have about its contents, its status, and the issues remaining to be settled.
The Federal copyright law now in effect in the United States was adopted in
96
1909 and has been amended in only a few relatively minor ways. It is essen-
tially a Nineteenth Century copyright law, based on assumptions concerning tJie
creation and dissemination of author's works that have been completely over-
turned in the past fifty years. A Twentieth-Century copyright statute is long
overdue in the United States, and the present need for a revised law that will
anticipate the Twenty-First Century is so obvious as to be undeniable.
It is startling to realize that the program for general revision of the copyright
law actually got underway more than 50 years ago, in 1924, and produced four dis-
tinct legislative efforts before World War II : The Dallinger, Perkins, and Vestal
Bills in 1924-1931, the Sirovich Bill in 1932, the Duffy Bill in 1934-1936, and the
"Shotwell" Bill in 1939. One of these measures passed the House, and a later
one passed the Senate, but in every case the revision program ultimately failed
of enactment because of fierce opposition to particular provisions by certain
groups. The history of U.S. copyright law revision in the 1920's and 1930's
teaches a basic lesson : the need to work out accommodations on the critical issues
in an atmosphere of good will and give and take. It is a great deal easier to
recognize the validity of this i)roiK)silit)n than to i)ut it into practice.
The failure of the earlier efforts at general revision of tlie copyright law has
been blamed on one group or another, and on the face of it there does appear to
be quite a bit of blame to go around. At the same time it is important not to
forget that the main purpose behind some of the revision bills was to permit
U.S. adherence to the International Convention of Berne. There can be little
doubt that some of the Congressional opposition to copyright law revision stemmed
from basic objections to U.S. acceptance of foreign principles of copyright juris-
prudence and to U.S. assumption of the international obligations involved in
becoming a member of the Berne Union.
After World War II the proponents of copyright law reform adopted a new
approach. It was assumed, on the basis of past experience, that efforts to revise
the copyright law in a way that would permit adherence to the Berne Convention
would continue to be futile. It was also recognized that the emergence of the
United States as a major exporter of cultural materials made our adherence to
a multilateral convention essential. Thiis. efforts to secure general revision of the
copyright law were temporarily deferred in favor of a major program aimed at
developing and implementing a new international copyright convention to which
the United States could adhere without major changes in our law. These efforts,
under the leadership of Ileglster of Copyrights, Arthur Fisher, achieved success
in 1952 with the signing at Geneva of the Universal Copyright Convention, fol-
lowed in 1954 by the enactment of revisions to the 1909 statute permitting U.S.
adherence to the UCC, and by the coming into force of the Convention in 1955.
Noteworthy as it was, the achievement of bringing the United States into the
international copyright community also served to dramatize once more how
archaic and inadequate the U.S. copyright statute of 1909 had become. The autumn
of 1955, which saw the coming into force of the Universal Copyright Convention
and the inauguration of the current program for general revision of the copyright
law, marked the end of one epoch and the beginning of another. In August 1955,
Congress authorized the formation of a Panel of Consultants on General Revision
of the Copyright Law under the chairmanship of the Register of Copyrights, and
the Copyright Office undertook a series of basic studies of the major substantive
issues involved in revision. At the same time began what has become a seemingly
endless series of meetings and discussions with representatives of virtually every
interest group affected by the copyright law. By now these discussions, which have
been as valuable as they have been time-consuming, must literally run into the
thousands.
The study phase of the current revision program began almost exactly 20 years
ago, in 1955. It was supposed to take three years, but it took about six. It pro-
duced 35 studies covering most of what we thought at the time were the sub-
stantive issues in copyright revision. These were published, together with a large
body of comments from the Panel of Consultants, and I am proud to say that they
are all still in print.
The culmination of this effort was the publication, in 1961. of the 1961 Report
of the Register of Copyrights on General Revision of the Copyright Law. The
Register's Report was the first of many major contributions to the general revi-
sion program by Abraham L. Kaminstein. INIr. Fisher's successor as Register of
Copyrights. The purpose of the Reports, as Mr. Kaminstein said in his 1962 Annual
Report, "was to furnish a tangible core around which opinions and conclusions
could crystalize — to achieve the widest possible agreement on basic principles
97
before proceeding to draft a revised copyright law." The Report attempted to pin-
point the major issues in revision, summarize the present hiw with respect to each
of tliem, analyze alternative solutions, and present specific recommendations.
The Register's Report succeeded very well in clarifying the issues and in
focusing the discussions on them, but some of its most fundamental recommenda-
tions proved more controversial than anyone in the Copyright Office had expected.
In particular, the Register's proposal for copyright to begin with "public dis-
semination" and to last for a first term of 28 years, renewable for a .second term
of 48 years, provoked a flood of opposition ; there was strong support for a single
Federal copyright system with protection commencing upon the creation of a work
and ending 50 years after the author's death. A series of meetings of the Panel
of Consultants on General Revision was held between September 1961, and March
1962, at which all of the Report's recommendations were discussed in an increas-
ingly tense atmosphere. The heated arguments at these and other meetings actu-
ally'stalled the revision program for several months and brought it to a genuine
crisis in the later summer and fall of 1962. It became apparent that, if the entire
project was not to flounder, some method for advancing and considering alterna-
tive recommendations would have to be found.
In November 1962, the Register announced that the Copyright Offiee was pre-
pared to change its position on some debatable questions and to draft alternative
language on others. He indicated that the Office was prepared to revise its recom-
mendations concerning "public dissemination" and the retention of common law
protection, and that "at least one alternative version of our draft bill will adopt
the life-plus basis for computing the term — in conjunction with a system of notice,
deposit, and registration that we consider essential." The Register also announced
that he would send preliminary drafts of .statutory language to the members of an
expanded Panel of Consultants on General Revision for their comments, and that
he would -convene another series of meetings on the preliminary draft. The proc-
ess of preparing draft language for circulation occupied practically all of 1963, and
included a total of eight meetings of the Panel of Consultants.
The development of this preliminary draft proved to l)e a difficult but enor-
mously productive phase of the program. The procedure adopted provided a motive
and a forum for detailing, critical scrutiny of the language and substance of a new
copyright statute by representatives of nearly all of the groups affected. It also
created an atmosphere of cooperative effort that has survived various stresses and
strains and has continued to grow in breadth and depth.
The preliminary draft of the general revision bill that had reached completion
at the beginning of 1964 was never intended to l)e a final report. The next six
months were devoted to compiling, analyzing, and synthesizing all of the com-
ments received on the draft, to making substantive decisions and changes on
the basis of these comments, and to preparing a complete, section-by-section
revision of the bill. The draft of the bill that emerged from this process was
prepared entirely within the Copyright Office without collaboration or consulta-
tion with any private groups or individuals. The introduction of the 1964 draft
in July 1964 'marked the end of the drafting phase of the revision program and
the opening of the legislative phase.
Like the preliminary draft on which it was based, the 1964 bill was not intended
as a finished product, but as a focal point for further comments and suggestions.
In August 1964, a full week of detailed discussions of the bill showed that a
great deal of progress had been made, but that still further revisions would be
necessary l)efore legislative hearings could profitably begin. During the fall and
winter of 1964-1965 the Copyright Office reviewed and analyzed the many oral
and written comments on the bill and prepared another complete revision.
At the beginning of the 89th Congress, on February 4, 1965, Representative
Celler introduced the 1965 general revision bill and the Copyright Office six>nt
the next three months preparing a supplement to the 1961 Register's Report.
The Supplementary Report of the Register of Copyrights on the General Revision
of the U.S. Copyright Law : 1965 Revision Bill which was published in May 1965,
set forth the reasons for changing a number of recommendations in the 1961
report and clarified the meaning of the provisions of the 1965 bill.
Publication of the Supplementary Report coincided with the oi)ening of Con-
gressional hearings on the bill. Over a period of more than three months, between
May 26, 1965 and September 2, 1965, 22 days of public hearings were held before
your subcommittee, under the objective and dedicated chairmanship of the man
who is still your chairman, Robert W. Kastenmeier. A total of 163 mtnesses,
representing an extraordinarily wide range of public and private interests,
98
appeared to testify. The record of those 1965 hearings oomprises nearly 2,000
pages of printed text, including not only the oral transcript but also more than
150 written statements. The Senate Judiciary Subcommittee under the chair-
manship of Senator John McClellan of Arkansas, held brief hearings on the
revi-sion bill in August 11*65, but delayed a full series pending the conclusion
of the inten.se activity in the House subcommittee.
Several significant factors with respect to the general revision program emerged
from the 11)65 hearings. Most obvious were the sharp controversies remaining
to be settled on some old issues (such as the jukebox exemption, the royalty rate
to be paid under the compulsory license for recording music, and the manufac-
turing requirements with respect to English-language books and periodicals),
and on some relatively new issues (such as fair use, and the reproduction of
copyrighted works for educational and research purposes, the liability of educa-
tional broadcaster.s and similar transmitter;?, and the status of community
antenna television systems under the copyright law).
Aside from the need to work out further accommodations on several critical
issues, the most serious problem arising from the 1965 hearings was now to orga-
nize the massive contents of the record in a way that would overlook no signifi-
cant comment or suggestion but that still would form a comprehensive basis for
decision-making. Working in close collaboration, the Copyright Oflice and the
House Judiciary Committee counsel prepared summaries of every statement that
had been made, and then divided the entire corpus of the hearings into ten gen-
eral areas: subject matter of copyright, ownership, duration, notice and regis-
tration, manufacturing and importation requirements, community antenna sy.s-
tems and other secondary transmissions, jukebox performances, compulsory
license for phonorecords, educational copying and fair use, and educational broad-
casting and other i>erforming rights. Each subject was then divided into sub-
topics, under which were listed every issue raised at the hearings.
This "experiment in legislative technique," as it has been called, proved effec-
tive. It enabled the House Judiciary Subcommittee, in its deliberations of the
bill, to consider each issue In context, to weigh the arguments for and against
it, and to arrive at reasoned decisions. Meeting regularly, usually twice a week,
from February through September 1966, the subcommittee held 51 executive
sessions, all of which were attended by representatives of the Copyright Office.
Examining each issue in deptli and then redrafting the pertinent section of the
bill as they went along, the subcommittee produced an entirely revised bill in
an atmosphere of informal, bipartisan discussions that could well serve as a
model for similar legislative projects.
The bill, as revised by the subcommittee, was reported Tinanimously to the full
House Judiciary Committee on September 21, 1966. and was reported without
amendment by the full Judiciary Committee on October 12, 1960. The House Re-
port still remains the basic legislative explanation of the content of the bill, and
the rei)orts succeeding it in both Houses have all been drawn from it.
The bill was reported too late in the 89th Congress for further legislative
action, and indeed none had been expected in 1966. In the revised form reported
by the House, it was introduced by Representative Celler in the 90th Congress,
and Avas considered by the newly-constituted membership of Subcommittee 3,
again chaired by Representative Kastenmeier on Feliruary 20. 24 and 27, 1967.
It was reiwrted to the full Committee on the last of these dates and, after ratlier
heated debates in the full committee on February 28 and March 2, 1967, was
again reported to the House. This time, however, the report included minority
views by Representatives Byron G. Rogers of Colorado and Basil L. Whitener
of North Carolina, devoted to the jukebox issue, and additional dissent by Mr.
Whitener on the bilFs treatment of CATV.
It was becoming increasingly apparent, as the bill moved toward the House
floor, that extremely sharp and unreconciled conflicts on the issues of jukel)ox
performance and CATV transmissions remained, and that there was a serious
danger that one or both of these issues could defeat the bill. The bill was con-
sidered by the House Rules Committee on March 8, 1967. and tlie rather acrimo-
nious arguments in the Committee before it took action authorizing full debate
on the House floor were another danger signal.
The debates of the bill in the House of Representatives on April 6. 1967. were
difficult and protracted. When the House finally recessed after 7 :00 p.m., it was
apparent that a rescue ox)eration was essential. Over the next four days, in an
atmosphere of intense crisis, several crucial compromises were achieved, and on
99
Tuesday, April 11, an amended bill was passed by the House after mild del)ate
witli the e.vtraurdinary vote of 379 yeas to 29 nays. Fairly radical changes were
made in three areas : there were drastic revisions in the provisions es-tablishing
copyri;?ht liability for jukebox performances ; the provisions dealing with com-
munity antenna transmission were dropped entirely and the exemptions for in-
s'truetional broadcasting were considerably broadened. On the other hand, the
structure and content of the bill itself has remained substantially intact.
The Senate Judiciary Committee, which had opened hearings in 1965 and had
had a short series of hearings on the CATV problem in 1966, resumed full-scale
consideration of the bill, under the joint chairmanship of Senators McClellan
and Burdick. on March 15, 1967. Indeed, tlie Senate hearings were in full swing
during the crisis in the House, and for a time the general revision program re-
sembled a two-ring circus in more ways than one. To everyone's surprise the
record of the Senate hearings, which lasted 10 days and ended on April 2S, 1967,
very nearly equals that of the House hearings in size and content.
Of the several areas that emerged as fullblown issues at the Senate hearings,
by far the most important is the iiroblem of the use of copyrighted works in
automated information storage and retrieval systems. This prolilem was ad-
dressed separately in the context of the creation of a National Commission on
New Technological Uses which Congress enacted as separate legislation only last
year, and which is still awaiting staffing.
Meanwhile, as the 1967 legislative momentum began to slow more and more,
it was increasingly apparent that cable television had become the make-or-break
issue for copyright revision. Although the Senate Judiciary Subcommittee worked
long and hard between 1968 and 1970 to resolve controversies over a number of
issues other than cable, and succeeded in reporting the revised bill to the full
Senate Judiciary Committee during the 91.s't Congress, it was not able to push
revision any further. An effort .spearheaded by the Copyright Office to gain enact-
ment of a "barebones"' bill, containing everything except the cable section and
other controversial provisions dealing with economic rights, also failed. By 1971
it was apparent that the bill was completely stymied over the CATV issue, and
even the issuance of comprehensive FCC rules in 1972, governing the carriage of
.signals and programming by cable systems, failed to break the impa.sse.
Because of this long delay. Congress has passed a series of succe.ssive bills
ex*tending the term of coi)yright. The.'^e now run through the end of the current
CVmgress, and are scheduled to expire on December 31, 1976. Tlie urgent proVt-
lem of tape piracy was also taken care of through separate legislation. A total
of seven years passed between House passage of the bill in 1967 and the resumi)-
tion of its active consideration in the Senate Subcommittee last year.
There may have been other reasons, but certainly the most immediate cause of
the revision bill's new momentum was the Supreme Court decision in CBS v.
Teleprotnpter, holding that under the 1909 statute cable systems are not lialde
for copyright infringement when they import distant signals. The decision wa.^
followed quickly by favorable actions in the Senate Judiciary Subcommittee and
full Committee and, after a brief referral to the Commerce Committee, by passage
in the Senate on September 9, 1975, by a vote of 70-1. In late November your
Subcommittee held a hearing which, in one respect was a forerunner of these
hearings. I testified in an optimistic vein at that time, and I remain hopeful
that at long la.st the entire revision measure will be enacted into law during the
current Congress.
Ms. Ringer. The Federal copyright law now in effect in the United
States was adopted in 1909 and has been amended in only a few rela-
tively minor ways. It is essentially a 19th ccntnry copyright law, based
on assumptions concerning the creation and dissemination of author's
works that have been completely overturned in the past 50 years.
A 20th-century copyright statute is long overdue in the United
States, and the present need for a revised law that will anticipate the
21st century is so obvious as to be undeniable. ,
. It is startling to realize that the program for general revision of
the copyright law actually got miderway more than 50 years ago. in
1924, and produced four distinct legislative efforts before World "War
II. I will not go through the bills, but the period covered was 1924
100
to 1939. One bill was produced just on the eve of World War II after
extensive consideration. That bill died because of the war.
One of these measures passed the House, and a later one passed the
Senate, but in every case the revision program ultimately failed of
enactment because of fierce opposition to particular provisions by
certain groups.
The history of the U.S. copyright law revision in the 1920's and 1930's
teaches a basic lesson : The need to work out accommodations on the
critical issues in an atmosphere of good will and give and take. It
is a great deal easier to recognize the validity of this proposition than
to put it into practice.
The failui'e of the earlier efforts at general revision of the copy-
right law has been blamed on one group or another, and on the face
of it there does appear to be quite a bit of blame to go around. At
the same time, it is important not to forget that the main purpose at
that time behind some of the revision bills was to permit U.S. adher-
ence to the International Convention of Berne.
There can be little doubt that some of the congressional opposition
to copyright law i-evision stemmed from basic objections to U.S.
acceptance of foreign principles of copyright jurisprudence, and to
V.S. assumption of the international obligations involved in becoming
a member of tlie Berne Union.
If it had not been for that issue, the copyright law would have
been revised during that period, in my opinion.
After World War II the proponents of copyright law reform
adopted a new approach. It was assumed, on the basis of past experi-
ence, that efforts to revise the copyright law in a way that would
permit adherence to the Berne Convention would continue to be futile.
It was also recognized that the emergence of the United States as a
major exporter of cultural materials made our adherence to a multi-
lateral convention essential. Thus, efforts to secure general revision
of the copyright law were temporarily deferred in favor of a major
program aimed at developing and implementing a new international
copyright convention to which the United States could adhere without
major changes in our law.
it was essential to develop and get implemented a new international
convention aimed at bringing the United States into a multilateral
copyright arrangement without requiring us to make major changes
in tiie 1909 law. Tliis was done under the leadership of Arthur Fisher,
then register of copyrights. They succeeded in 1952 with the signing
of the Universal Copyright Convention, followed in 1954 by the
enactment of revisions to the 1909 statute permitting U.S. adherence
to tlie UCC, and by the coming into force of the convention in 1955.
Noteworthy as "it was, the achievement of bringing the United
States into the international copyright community also served to
dr-amatize once more how archaic and inadequate the U.S copyright
statute of 1909 had become.
The autumn of 1955, which saw the coming into force of the Uni-
versal Copyright Convention and the inauguration of the current pro-
gram for general revision of the copyright law, marked the end of
one era and the beginnins: of another. I think the dividing line was
August 1955.
101
In August 1955, Congress authorized the formation of a Panel of
Consultants on General Eevision of the Copyright Law under the
chairmanship of the register of copyrights, and the Copyright Office
undertook a series of basic studies of the major substantive issues
involved in revision.
At the same time began what has become a seemingly endless series
of meetings and discussions with representatives of virtually every
interest group affected by the copyright law.
By now these discussions, which have been as valuable as they have
been time consuming, must literally run into the thousands, and they
are still going on.
The study phase of the current revision program began almost
exactly 20 years ago, in 1955. It was supposed to take 3 years, but it
took about 6. It produced 35 fairly comprehensive studies covering
most of what we thought at the time were the substantive issues in
copyright revision.
These were published, together with a large body of comments from
the Panel of Consultants, and I am proud to say that tliey are all still
in print.
The culmination of this effort was the publication, in 1961, of the
1961 Report of the Register of Copyrights on General Revision of the
Copyright Law. The Register's report was the first of many major
contributions to the general revision program by Abraham L. Kamin-
stein, Mr. Fisher's successor as Register of Copyrights. The purpose
of the reports, as Mr. Kaminstein said in his 1962 annual report:
"Was to furnish a tangible core around wliich opinions and conclusions could
crystalize — to achieve the widest possible agreement on basic principles before
proceeding to draft a revised copyright law."
The report attempted to pinpoint the major issues in revision,
summarize the present law with respect to each of them, analyze alter-
native solutions, and present specific recommendations.
The Register's report succeeded very well in clarifying the issues
and in focusing the discussions on them, but some of its most funda-
mental recommendations proved more controversial than anyone in
the Copyright Office had expected.
In particular, the Register's proposal for copyright to begin with
"public dissemination'' and to last for a first term of 28 years, renew-
able for a second term of 48 years, provoked a flood of opposition;
there was strong support for a single Federal copyright system with
protection commencing upon the creation of a work and ending 50
years after the author's death.
A series of meetings of the Panel of Consultants on General Revi-
sions, after the publication of the Register's report, was held between
September 1961, and March 1962, at which all of the report's recom-
mendations were discussed in an increasingly tense atmosphere.
The heated arguments at these and other meetings actually stalled
the revision program for several months and brought it to a genuine
crisis in the late summer and fall of 1962. It became apparent that, if
the entire project were not to founder, some method for advancing
and considering alternative recommendations would have to be found.
In other words, the Copyright Office had to reconsider its position.
102
In November 1962, the Register announced that the Coi)yright Of-
fice was prepared to change its position on some debatable questions
and to draft alternative language on others. He indicated that the
Office was prepared to revise its recommendations concerning "public
dissemination" and the retention of common law protection, and that,
'*at least one alternative version of our draft bill will adopt the life-
plus basis for computing the term — in conjunction with a system of
notice, deposit, and registration that we consider essential."
The Register also announced that he would send preliminary. drafts
of statutory language to the members of an expanded Panel of Con-
sultants on General Revision for their comments, and that he would
convene another series of meetings on the preliminary draft.
The process of preparing draft language for circulation occupied,
jDractically all of 1963, and included a total of eight meetings of the
Panel of Consultants.
The development of this preliminary draft proved to be a difficult
but enormously productive phase of the program. The procedure
adopted provided a motive and a forum for detailed, critical scrutiny
of the language and substance of a new copyright statute by repre-
sentatives of nearly all of the groups affected.
It also created an atmosphere of cooperative effort that has survived
various stresses and strains and has continued to grow in breadth
and depth.
The preliminary draft of the general revision bill, tliat had readied
completion at the beginning of 1964, was never intended to be a final
product. The next 6 months were devoted to compiling, analyzing,
and synthesizing all of the comments received on the draft, to making
substantive decisions and changes on the basis of these comments,
and to preparing a complete, section-by-section revision of the bill.
The draft of the bill that emerged from this process was prepared
entirely within the Copyright Office without collaboration or con-
sultation with any private groups or individuals involved. The intro-
duction of the 1964 draft in July 1964, marked the end of the draft-
ing phase of the revision program and the opening of the legislative
phase.
Like the preliminary draft on which it was based, the 1964 bill
was not intended as a finished product, but as a focal point for further
comments and suggestions. In August 1964, a full Aveek of detailed
discussions of the bill showed that a great deal of progress had been
made, but that still further revisions would be necessary befoi-e legis-
lative hearings could profitably begin.
Durino; the fall and winter of 1964-65, the Copyright Office reviewed
and analyzed the many oral and written comments on the bill and
pi'epared another complete revision.
At the beginning of the 89th Congress, on February 4, 1965, Rep-
resentative Celler introduced the 1965 General Revision bill and the
Copvriffht Office spent the noxt 3 months preparing a supplement to
tho 1961 Recfister's Report. The '^ui^plementary roport of the Remster
of Copyri2"hts on the General Revision of the TT.S. Copyright Law:
1965 Revision bill which was pu])lished in INfav 1965. s^t forth ^'^'f'
I'pasons for chanjnnp- n number of recommendations in the 19fi1
To^^ort nnd clarified the meaning of the provisions of the 1965 bill.
Publication of the supplementary report coincided with the open-
103
ing of congressional hearings on the bill. Over a period of more than
3 months, between May 26, 1965 and September 2, 1965, 22 days of
public hearings were held before your subcommittee, under the ob-
jective and dedicated chairmanship of the man who is still your
chairman, Robert W. Kastenmeier.
A total of 163 witnesses, representing an extraordinarily wide range
of public and private interests, appeared to testify. The record of
those 1965 hearings comprises nearly 2,000 pages of printed text,
including not only the oral transcript but also more than 150 written
statements.
The Senate Judiciary Subcommittee under the chairmanship of
John McClellan of Arkansas, held brief hearings on the Revision
bill in August 1965, but delayed a full series pending the conclusion
of the intense activity in the House subcommittee.
Several significant factors with respect to the general revision
program emerged from the 1965 hearings. Most obvious were the
sharp controversies remaining to be settled on some old issues —
such as the jukebox exemption, the royalty rate to be paid under the
compulsory license for recording music, and the manufacturing
requirements with respect to English-language books and periodicals—
and on some relatively new issues — such as fair use, and the reproduc-
tion of copyrighted works for educational and research purposes,
the liability of educational broadcasters and similar transmitters,
and the status of community antenna television systems under the
copyright law.
Aside from the need to work out further accommodations on sev-
eral critical issues, the most serious problem arising from the 1965
hearing was how to organize the massive contents of the record
in a way that would overlook no significant comment or suggestion
but that still would form a comprehensible l^asis for decisionmaking.
Let me say a personal word about those 51 days of subcommittee meet-
ings, since they were very significant.
Working in close collaboration, the Copyright Office and the House
Judiciary Committee counsel prepared summaries of every state-
ment that had been made, and then divided the entire corpus of the
hearings into 10 general areas: Subject matter of copyright, owner-
ship, duration, notice and registration, manufacturing and importa-
tion requirements, community antenna systems and other secondary
transmissions, jukebox performances, compulsory license for phono-
records, educational copying and fair use, and educational broad-
casting and other performing rights.
Each subject was then divided into subtopics, under which were
listed every issue raised at the hearings.
The "experiment in legislative technique,'' as it has been called,
proved effective. I think the effectiveness will become more and more
apparent as you progress in 1975. It enabled the House Judiciary
Subcommittee, in its deliberations of the bill, to consider each issue
in context, to weigh the arguments for and against it, and to arrive at
reasoned decisions.
Meeting regularly, usually twice a week, from February through
September 1966, the subcommittee held 51 executive sessions, all of
which were attended by representatives of the Copyright Office.
Examining each issue indepth and then redrafting the pertinent sec-
104
tion of the bill as they went alon*;, the subcommittee produced an en-
tirely revised bill in an atmosphere of informal, bipartisan discus-
sions that could well serve as a model for similar legislative projects.
The bill, as revised by the subcommittee, was reported unanimously
to the full House Judiciary Committee on September 21, 1966, and
was reported without amendment by the full Judiciary Committee on
October 12, 1966.
The House report still remains the basic leo-islative explanation of
the content of the bill, and the reports succeeding it in both Houses
have all been drawn from it.
The bill was reported too late in the 89th Congress for further
legislative action, and indeed, none had been expected in 1966. In
the revised form reported by the House, it was introduced by Repre-
sentative Celler in the 90th Congress, and was considered by the newly
constituted membership of Subcommittee No. 3, again chaired by
Representative Kastenmeier, on February 20, 24, and 27, 1967.
It was reported to the full committee on the last of these dates, and,
after rather heated debates in the full committee on February 28 and
March 2, 1967, was again reported to the House.
This time, however, the report included minority views by Rep-
resentatives Byron G. Rogers of Colorado and Basil L. Whitener of
North Carolina, devoted to the jukebox issue, and additional dissent
by Mr. Whitener on the bill's treatment of C ATV.
It was becoming increasingly apparent, as the bill moved toward the
House floor, that extremely sharp and unreconciled conflicts on the
issues of jukebox performance and CATV transmissions remained,
and that there was a serious danger that one or both of these issues
could defeat the bill.
The bill was considered by tlie Plouse Rules Committee on March
8, 1967, and the rather acrimonious arguments in the committee be-
fore it took action authorizing full debate on the House floor were
another danger signal.
The debates of the bill in the House of Representatives on April 6,
1967, were difficult and protracted, to say the least. When the House
finally recessed after 7 p.m., it was apparent that a rescue operation
was essential. Over the next 4 days, in an atmosphere of intense crisis,
several crucial compromises were achieved, and on Tuesday, iVpril 11,
1967, an amended bill was passed by the House after mild debate with
the extraordinary vote of 379 yeas to 29 nays.
Fairly radical changes were made in three areas: There were dras-
tic revisions in the provisions establishing copyright liability for juke-
box performances; the provisions dealing with community antenna
transmission were dropped entirely and the exemptions for instruc-
tional broadcasting were considernbh/ broadened. On the other hand,
the structure and content of the bill itself has remained substantially
intact.
The Senate Judiciary Subcommittee, which had opened hearings
in 196.5, and had had a short, series of hearinirs on the CATV problem
in 1966, resumed full-scale consideration of the bill, under the joint
chairmanship of Senators McClellan and Burdick, on March 15,
1967.
Indeed, the Senate hearings were in full swing during the crisis in
the House, and for a time the general revision program resembled a>
105
two-ring circus in more Avays than one. To everyone's surprise the
record of the Senate hearings, which lasted 10 days and ended on.
April 28, 1967, very nearly equals that of the House hearings in size
and content.
Of the several areas that emerged as fullblown issues at the Senate
hearings, by far the most important is the problem of the use of
copyrighted works in automated information storage and retrieval
systems. This problem was addressed separately in the context of
the creation of a National Commission on New Technological Uses
which Congress enacted as separate legislation only last year, and
which is still awaiting statnng from the White House.
Meanwhile, as the 1967 legislative momentum began to slow more
and more, it was increasingly apparent that cable television had be-
come the make-or-break issue for copyright revision. Although the-
Senate Judiciary Subcommittee worked long and hard between 1968
and 1970 to resolve controversies over a number of issues other than
cable, and succeeded in reporting the revised bill to the full Senate
Judiciary Committee during the 91st Congress, it was not able to push
revision any further.
An effort spearheaded by the Copyright Office to gain enactment
of a "barebones"' bill, containing everything except the cable section
and other controversial provisions dealing with economic rights, also
failed for tactical reasons.
By 1971, it was apparent that the bill was completely stymied over
the CATV issue, and even the issuance of comprehensive FCC rules
in 1972, governing the carriage of signals and programing by cable
systems, failed to break the impasse.
Because of this long delay, Congress has passed a series of succes-
sive bills extending the term of expiring copyrights. These now run
through the end of the current Congress, and are scheduled to expire
on December 31, 1976. The urgent problem of tape piracy was also
taken care of through separate legislation.
A total of 7 years passed between House passage of the bill in 1967
and the resumption of its active consideration in the Senate subcom-
mittee last year.
There niay have been other reasons, but certainly the most im-
mediate cause of the Revision bill's new momentum was the Supreme
Court's decision in CBt^ v. Teleprompter^ in March 1974, holding
that under the 1909 statute, cablp svstems are not liable for copyright
infringement when they import distant signals.
The decision was followed quickly by favorable actions in the
Senate Judiciary Subcommittee and full committee and, after a brief
referral to the Commerce Committee, by passage in the Senate on
September 9, 1975, by a vote of 70 to 1.
In late November, your subcommittee held a hearing which, in one
respect, was a forenmner of these hearings. I testified in an optimistic
vein at that time, find I remain hopeful that at long last the entire
revision measure will be enacted into law during the current Conjrress.
Mr. Chnirman, this is the end of my prepared statement, but I
would also like to identifv seven or perhaps eifrht issues which will cer-
tainly com.e before you. I am preparing what I hone will be a spr>ond
supplementary report of thf- register of copvrijrhts which w^ll \\&
j.^ „o- — 7n — pt. 1 8
106
available to you and also to the subcommittee by the time you need to
consider the bill in a markup sense.
This would not be something that would be part of the record of
this hearing, but I would hope that I might have a chance to speak
to it again later toward the end of these hearings or perhaps during
the markup sessions.
I have no intention now in trying to guess what the other witnesses
are going to say or in arguing anyone's case.
My feeling as the head of the Copyright Office is that my respon-
sibility is to one group and one group only, and that is the group
that is identified as the sole and only beneficiary of the copyright law
of the United States under the Constitution, the authors of the
so-called writings. In other words, the creators of copyrighted works
as we now know them.
I am profoundly of the belief that authors in this country have
been treated shabbily and stingily from the very beginning of our
copyright system.
And, whatever I say will be with the thought that the situation
of authors, not only as the creators of works of economic value, but
as something that is infinitely precious to our country, needs to be
promoted.
I don't think this has been done effectively under previous legisla-
tion. I will return to this point later. I am also conscious that everyone
else besides the author is a user of the author's work, and as between
users there may be arguments which are extremely persuasive for rea-
sons unrelated to protection of the author but in some respects are
irrelevant to the essential purpose of the copyright law.
In these areas I think compromises liave been reached. I think com-
promises have been necessary and I think further compromises will
be made. But it is vitally important that you consider the effect of a
])articular provision on the individual author and not primarily of
its effect on an economic group using th& author's work for good
or for ill.
- Turning to H.R. 2223, as it now stands, I will try to give you an
idea of its framework and its approach and pinpoint a few of the
major issues that you will be hearing debated in the weeks to come.
In the long, I am afraid, and rather boring statement that I made
on the history of this project, I did want to make a point. Obviously,
there is a long history behind the provisions in this bill, and aside from
the chairman, all the members of your subcommittee are coming on it
as new legislation, and you should not take it on faith.
No one in their right mind would ask you to. Wliat I am trying to
say, though, is that your predecessor members on tlie subcommittee
went over most of these provisions in vast and searching detail. And,
to a remarkable degree, aside from a few of the widely-publicized
issues like cable, your subcommittee did its work so well that the
basic legislation and its wording have become generally accepted.
A lot of things are not issues that once were, because what you did
has been accepted. I think you will realize this as you go along.
Very simply, the present law is outdated, it is vague, it is ambiguous,
it is arbitrary, and results in a great deal of unproductive work both
on the part of those who have to operate under it and on the part of
the Copyright Office.
107
It is comijletely unlike any other copyright law in the world and, in
some cases, is simply a historic vestige. We have in this country a dual
system of copyright. We are the only country that has this. We have a
system that consists of common law copj'right in a work up to the
point of first publication. At that point the work either falls into
the public domain or it becomes subject to statutory copyright. Pub-
lication is the dividing line between common law protection and
either the public domain or the limited statutory protection of the
1909 law.
I don't think I need to stress that the concept of publication has
now become outdated and slightly ridiculous. We are now in an
era in wliich there are very few works that are not capable of being
disseminated by media other than print, and many works never see
print and are disseminated entirely through various electronic media.
Tliis system has resulted in peculiarities and injustices, none of
these less than the monsti'ous formalities that were retained and added
to in the 1909 law. The fact is that if you publish a work, publish in the
print sense, without a coj:)yright notice in the correct form and posi-
tion, you throw your work into the public domain regardless of what
your intentions were.
The revision bill attempts to deal with the entire copyright situ-
ation as it now exists and, to the extent that it is possible to predict it,
into the next century.
It provides essentially a simple system which is nothing novel. This
system exists everywhere in the world. It is a system of a term based
on the creation of the work. In other words, when the author figura-
tivelv lifts his pen from his paper, he has a copyright under the Fed-
eral law and under the Constitution, and he has it for his lifetime.
There is no possibility that it would expire during his life, which
is possible and in fact likely, under the present law. The international
norm for the term of copyright is the life of the author plus 50 years.
This is now in effect in a large majority of countries that have copy-
right laws.
Mr. DA>nLELS0N. Mr. Chairman, I should like to inquire.
Mr. Kastexmeier. The gentleman from California.
]Mr. Daxielsox. Ms. Ringer, you just mentioned that automatically
under the bill the creator has a lifetime copyright. Perhaps as we go
along as a new member of this subcommittee, I will have my present
question resolved.
As I read the Constitution it authorizes to secure for limited times
and in the absence of compelling evidence I am going to assume we
have the right to make that less than a lifetime.
Can vou explain that difference, please ?
Ms. Rix'GER. There is nothing unconstitutional about the present
law which provides a first term of 28 years with a second term under
a renewal system of 28 yeare ; and as I mentioned this second term has
been extended by recent enactments of Congress.
There is nothing unconstitutional about that. At the same time, I
would find mvself unable to agree with any argument that a term
based on the life of the author and a finite number of years after his
death was not a limited term.
Obviously people die. Evervone dies and that in itself is a limited
term. If you add 50 years after that, you are definitely creating a
limited term.
108
I think a better argument could be made that, under the present
law, when you lift the pen from the paper you have an automatic
common law copyright that is perpetual as long as the work is not
"published."
And I believe there might be some question as to whether or not
this is constitutional. That there are many, many manuscripts sitting
over in the Library of Congress Mhich may well be subject to protec-
tion for generations, centuries, perhaps even eons.
This seems against the public interest. One of the arguments for a
life-plus-50 term is that not only does it provide a clearcut cutoff date
but the date is the same for eveiy work that an author writes.
In other words, for all of an author's works under a life-plus-50
system, every work falls into the public domain at the same time
and you don't have tliis syst^^m that we have now where you have to
do a lot of research to determine when a work falls into the public
domain.
Mr, Dantelson. Suppose Congress would enact a law which would
limit this to 10 years, which might very well be less than a lifetime?
]Ms. Ringer. I am not suggesting that the system in the bill is some-
thing dictated by the Constitution or anything other than interna-
tional norms that have been established and accepted throughout the
rest of the world.
Whfit I am sayinr;: is that 10 years might be sufficient
Mr. Danielson. I am only talking about constitutionality. If we
limited a copyright to 10 years, I can see no reason why that would
not be constitutional.
j\Is. Rtnger. Nor can I.
Mr. Kastenmeier. You may continue.
Ms. Ringer. Thank you. The present 'bill, the bill we are now con-
sidering, H.R. 2223, in addition retains the formalities that have been
bugaboos under the present law, but liberalizes them to the extent that
they are not the all-or-nothing disasters that authors face now.
In other words, if you publish your work without a notice or with
an incorrect notice, the bill allows you to correct your mistake. This is
true of other formalities. You would do something because there is
a reason for it and not just because the law says you have to.
There is another provision which I am doubtful anyone will raise
as an issue, but I might mention in the context of the general content
of the bill. There are reforms that are of benefit to authors and artists
with respect to ownership, in addition to the longer term, and one of
the m.ost notable of these is in section 203 of the bill.
Instead of the present complex and rather arbitrary and ca-
pricious renewal provisions, it allows an author or his beneficiaries
to re-do a bad deal. In effect, the present law was intended to accom-
plish that result but has been most imperfect in doing this.
Section 203 is the reversion provision which basically allows an au-
thor, if he is still living or his widow and children and grandchildren
to terminate a transfer after 35 years under certain circumstances.
If they don't do that, then the contract continues. If they do do it,
then tliev have nn absolute right to call the deal to a halt. In my
opinion, despite the complexity of the provisions, it is a real plus for
authors.
109
Let me say that most of the real issues that you are going to be con-
sidering are not going to be before you in the testimony. The real issues
are the reform of the copyright law and the things that I have been
talking about.
The issues that you will be hearing about are very, very important
to authors, among other groups, but they are almost all outside the
basic guts, if you will, of the bill itself.
The most important of these separate issues still remains, cable tele-
vision. There were some hopeful signs in the early seventies that an
agreement might be reached on this issue, but they turned out to be
somewhat premature.
Let me say that your subcommittee in the middle sixties was a
pioneer on this issue. It hit your predecessors cold. There had been
some consideration of this in the context of FCC regulations and
Senator Pastore had sponsored a bill in the communications area.
But in terms of the major issues raised by copyright liability for
cable operators, no one before you, in my opinion, had come to grips
with the ultimate problems, the question of division of markets, and
the importation of local as against distant signals and how the whole
thing might be wcrked out in a way that will benefit authors.
Your first essay on this, your bill that was put before the House
in 1967, was a pioneering effort, and no one should be ashamed of it.
I think it is recognized today as more sophisticated than anyone
could have expected for a bill at that time. You recognized complex
truths about this important public issue before others did and in fact
up until the end of the sixties, people were still asking, what is cable
television ?
This issue, I believe, is finally approaching a resolution, although
there will be sharply conflicting testimony. You cannot blame people
for wanting to get the best deal they can, and nothing is black, white,
or even gray on this issue.
I will answer any questions that you have. The bill itself establishes
a compulsoiy licensing system which in effect is based on this prin-
ciple, that if the FCC says that a system can carry a signal, then the
system automatically has a compulsory license to cairy that signal
and the copyrighted i)rogram, on the signal, and there is an
elaborate compulsory licensing procedure and a complex schedule of
fees that cable systems would have to follow and pay in order to
insulate themselves from liability for copyright infringement.
Essentially, the thing is basically a complete compulsory license.
The bill that you reported in 1967 did not have a compulsory license
for CATV, although you considered it. It did have exemptions and
complete liability. It was black and white and no gray.
What has emerged is quite different and yet I think that the prin-
ciples underlying it are still the same principles and I think the result
is probably an acceptable one.
The testimony you hear, I hope, will be largely over the details of
the systein and not whether or not cable ought to pay. There will be
some testimony to this effect, but it seems to me that maybe we are
beyond that point. As things stand now, it is mainly a question of
how they pay and how much.
Another issue which was not dealt with by your committee at all,
although you heard testimony on it, was that of library photo-
no
copying and I AYOuld rank this as tlie second most important issue in
the bill.
It is now dealt with in section 108 of H.R. 222.3. The reason that you
did not report a provision on this subject was that the parties re-
spectively, and for absolutely opposite reasons, agreed that the bill
should not address the problem.
At that time, and it was before the full impact of library photo-
copying and photocopying machines generally had been felt, the feel-
ing on the part of the copyright owners was that a provision specify-
ing explicitly what the liability of libraries would be would have dele-
terious effects, since the owners felt that they had complete rights and
libraries should not photocopy at all without paying. The library
community felt just the opposite.
I think it was a mistake for the bill to say nothing. Looking back,
I think that some provision on this was essential. What has emerged
in section 108 has been fought over in a friendly way for a number
of years in the Senate context. Essentially, section 108 insulates
libraries from liability for the operation of coin-operated machines
on their premises and allows them to photocopy single copies of
articles and excerpts from journals and books, and so forth, in their
collections. If it is clear that a work is out of print, they can make
a single complete copy for a user. Some of this activity can be carried
out for inter-library loan purposes.
The big issue in section 108 is found in subsection (g) , and the brief-
ing paper in the folder that I will give you goes into this in some
detail.
Under the final version that emerged in the Senate, after saying
what libraries can do, the bill says that this does not apply to multiple
copying, including making multiple copies one at a time and it does
not apply to single copying when it is done systematically.
It is still not altogether clear in anyone's mind what systematic
copying means, but there is a good deal of concern on the part of
librarians as to the chilling effect this would have on their interlibrary
loan and network activities which are ongoing and very important as
a public issue.
This is something that badly needs resolution. You passed and the
President did sign on December 81 of last year, a bill setting up a
national commission that has as part of its mandate, a study of this
problem.
At the same time you yourselves, will have to decide what section 108
and specifically section 108(g), says on this particular subject. There
are other activities going on in the library photocopying arena and
you will hear more about them as your hearings proceed.
An issue of great immediate importance in the subcommittee level
right now is the liability of public broadcasting. In 1967 your subcom-
mittee agreed that instructional television should be given an ex-
emption to a certain extent from copyright liability and during the
House debates, this exemption was expanded.
But at the same time the exemption was limited to instructional
television. Public broadcasting which to some extent enjoys an exemp-
tion today would be liable under H.R. 2228. The public broadcasters
and their representatives have been seeking a very broad and far-
Ill
reaching compulsory license with respect to the use of copyrighted
material other than motion pictures, audiovisual works and dramatic
works.
Their concern is with the high cost and difficulty in getting clear-
ances and the fact tliat their budget does not permit them to do the
clerical work or to pay extensive royalties.
The Senate subcommittee staff is now engaged in a series of meet-
ings trying to resolve this issue. The signs are relatively hopeful and
perhaps with certain amounts of good will and cooperation, you will
not have to face what is known generally as the Mathias amendment,
which would be the proposal for a compulsory license covering public
broadcasting.
Related to this is another amendment put forward in the last Con-
gress by Senator Bayli which would extend to an unlimited amount
the number of recordings, tapes, that an instructional broadcaster
could make of broadcasts for use in delayed broadcasts or throughout
the whole complex of instructional broadcasting.
In my opinion, this is an important issue but it is not as important as
the Mathias amendment, and I expect the two will be considered
together whenever they get to you.
In the area of jukeboxes, a very difficult compromise was achieved
in 1967 and, astonishingly, it has held up. This involved a compulsory
license for jukebox performances with a payment of $8 by jukebox
operators per box per year, the payments being made into the Copy-
right Office and then disbursed under the procedure provided.
"As a result of the cable wars in the Senate, an amendment was added
w^hich establishes a copyright tribunal, chapter 8 of the bill, and gives
it a double mandate. First, in certain cases, the tribunal would settle
disputes with respect to the disbursement of fees. This does not seem
objectionable to most people.
But in addition the tribunal would be called upon, through what in
effect is a compulsory arbitration system, to review the rates of the
compulsory licenses "that are set under the bill, and recommended
changes which would become effective unless Congress chose to wipe
them out.
The jukebox operators objected to $8 being subjected to a review,
and in the Senate consideration last Septeml^er, Senator Hollincrs put
forvrard an amenrlment that took the jukebox rate out from under the
tribunal review. This is the form in which the bill now appears.
The jukebox rate is frozen at $8 and it is not subject to review. I
am reasonabl}^ sure you will hear testimony on this issue in the davs
to come.
I believe that this is the only real issue remaining with respect to the
jukebox problem which, without any question, was our biggest head-
ache in the early sixties.
The other economic issue that you will hear testiTuony on is the
amovuit of the rate for the old traditional compulsory license covering
the making of sound recordings of musical compositions.
The 1909 law was a pioneer. It adopted the first compulsory license
in any field. It established a system which is still in efTect today that
allows a record producer to make a record of a copyrighted musical
composition without permission if he follows a compulsory licensing
procedure and pays 2 cents per record per song.
112
One can wonder how 2 cents in 1909 could possibly still be viable
today. The answer is probably that the LP resulted in the unit price
going from 2 cents to about 20 cents or in some cases 24 cents as a
ceiling.
But at the same time it has been argued very forcefully that the 2-
cent rate is infinitely too low, even considering the LP and the other
structural changes that have occurred in that industry. In the 1965
hearings, there was massive testimony of a statistical nature dealing
with the validity of the 2-cent rate.
Your committee agreed to 21/^ cents as a reasonable rate at which to
peg the royalty.
The Senate, facing an inflationary curve which had only just started
in 1965, raised the fee to 3 cents after considering at one point a 3V^-
cent rate. This is still a very, very sharp controversy and I think you
better prepare yourself for quite a lot of statistics within tlie coming
weeks.
Finally, and the seventh issue that I will mention, is the performance
right for records which has the — as the chairman mentioned
'^f~'
Mr. Kastenmeier. May I interrupt ? I have five : Cable TV, library
photocopying, liability of public broadcasting, jukeboxes, public
recording.
Ms. Ringer. I am sorry. I accidentally skipped one, the question of
educational use other than broadcasting and it will be the subject of
one of your days of testimony, if not more. In the 1965 hearings, you
heard a good deal of testimony on the issue of classroom photocopy-
ing and other copying by teachers of copyrighted material.
This was put forward in the context of the fair use provision which
is now section 107 of the bill and is a rather general statement of the
doctrine of fair use.
The question was whether or not a vague provision of this was suf-
ficient to give teachers guidance as to what they could and could not
do with respect to copyrighted material, except when they had at their
fingertips a good deal of electronic and other machinery for using copy-
righted materials and making them available to their students and
pupils. At the time, you sought to solve this problem by considering
all of the arguments that had been made and attempting in the report
to lay out what the committee regarded as fair use in this context.
There are about four closely packed pages still in the report, in the
Senate version, that reflect your committee's actual drafting of what
you considered the scope of fair use to be in this context of classroom
teaching.
This has not, I think it is fair to say, satisfied the educational rep-
resentatives. I believe you will hear proposals on this issue and I would
list this as one of the seven major issues.
An adjunct to the seven is the copyright royalty tribunal which is
an issue in itself but arises in the context of three of the other issues
and also of a fourth, wliich is the seventh of the major issues, the per-
formance right in records.
The testimony in 1965 on this issue was very interesting. The
record producers put forward a very strong case for anti-piracy legis-
lation and during the hearing, after testimony by performers and per-
formers' representatives, they added to that a proposal for a per-
forming right in recordings. That would mean payment under some
113
sort of system for playing records on disc jockey programs, for playing
records on iukeboxesj and for playing records on cable television and
music systems.
I draw a distinction at this point between the music on the record
and the recording itself. The music is already protected against all of
these uses except cable and jukebox and would be protected against all
of them under the bill.
The stopgap legislation that you passed in 1971 effective in 1972,
created a copyright in a sound recording that would extend to any
creative elements present in the recording but limited it to the particu-
lar situation of so-called piracy, unauthorized duplication, usually on
8-track cartridges.
This legislation which was temporary in its 1971 form was stand-
ardized as permanent legislation in 1974 and is now part of the copy-
right law. I don't regard "piracy" as an issue. It may become one.
What is an issue, and the major issue in the Senate consideration of
the bill in 1974, was the proposal that a performing right be added
to the law that would allow the collection of royalties for the playing-
of records as such on radio, television, cable, jukeboxes, and so forth.
The sponsor of this legislation in the Senate was Senator Scott. The
bill contained this provision when it went to the floor of the Senate
and was knocked out in a rather heated debate during that con-
sideration.
Senator Scott has reintroduced the proposal as a separate bill and.
Kepresentative Danielson has introduced the same bill. In the Senate
subcommittee I gather there will be hearings on the Scott bill and there
is a possibility that it might be joined with the revision bill.
In any case it is not a piece of separate legislation in its real effect.
I think it is something your subcommittee should consider as part of
the overall picture of general revision.
I repeat, however, that the Danielson bill is a revision of the 1909
law, which is the approach that is being taken in the Senate by Senator
Scott. I am not sure I have made that clear.
I should say on this point that I believe very strongly that sound
recordings and the performances incorporated in them are creative
works, that they are the writings of an author, and that they are sub-
ject to copyright protection under the Constitution.
There is no doubt about this in my mind and I believe that your ac-
tion in passing legislation that recognizes sound recordings as copy-
rightable and protects them against piracy is consistent with that
view. It is not whether they should be protected but how they should
be protected, whether protection should go beyond piracy to inchido
tlie payment of royalty for performances by various media. In prin-
ciple, I support that, too.
I think that the ways of working it out need to be carefully con-
sidered. The proposal in the old section 114 in the Senate version in
1974 had problems of a practical nature, but I am not sure that they
are insuperable.
These are the seven major issues and much of the testimony you will
hear will be centered around them and will be economic in nature. In
addition to this you will hear discussion at various points of the manu-
facturing clause, section 601 of the bill, and which is a disgraceful
vestige, in my opinion, of 19th century protectionist thinking.
114
The manufacturing clause was added in the 1891 Copyright Act as
the price the printers exacted for allowing copyright to be extended
to foreign authors. They had been getting a free ride up to that point
and they insisted that, as a price for allowing Dickens and Tolstoy to
be protected in this country, the works could not be copyrighted un-
less they were printed here.
This'provision, which was bad legislation to begin with, has become
eroded over the years and in 1965 it was eroded some more. The Reg-
ister's initial recommendation was that it be done away with. It became
apparent that it could not be knocked out of the bill without a major
fight.
As a result, it has been retained with a considerably narrowed scope.
I believe that the principal arguments you will hear, perhaps tomorrow
and in succeeding days, involve the fact that we are now equating
Canada with the United States in terms of the place of manufacture,
and this raises a host of technical questions which I won't go into. I
think there has been accommodation among the parties and there-
fore it is unlikely you will find people attacking the manufacturing
clause out of hand, as I have just done.
Yet personally I find it very, very bad legislation and would like to
see it gone. It may not be practical to do that.
I believe you will also hear testimony from artists and their repre-
sentatives with respect to the unsatisfactory situation of artists under
the present law.
I think this is a valid argument. The revision bill would help artists
but probably would not go as far as they would like it to.
Mr. Kastenmeier. When you say '"artists,"' whom do you have in
mind ?
Ms. liiNOER. Painters, sculptors, graphic artists, and designers. I
wanted to mention the design bill. Title II of the bill is a completely
separate piece of legislation which was conjoined with the revision;
bill in the Senate more or less as legislative expediency at the time.
The two prol)lems are related and I have no objection to them being
addressed together. I think this is probably a good idea.
But you will find differences in approach between them, and a bridge
provision in section 118 deserves your attention. I think the design bill
is a good l)ill and it deserves to be passed whether as a title II of this
overall omnibus revision or separately.
It is then unclear whether there wnll be a debate over it. There has
not been in the Senate.
There are other issues. There is a proposal that would exempt a
proprietor of a ballroom or similar place of entertainment from
liability and place the liability on the performing organization.
There are undoubtedly dozens of other little or perhaps not so little
issues that will arise during these hearings. But I have tried to
give vou the overall framework of what you will be hearing, and in my
opiiiion you do not need to go back to ground zero.
I don't thin]<: you need to start at the beginning. I think you can
consider many issues settled, thanks to your efforts in the sixties. Your
prol^lem is not a simple one but I think it is something that is solvable
and I am extremely encouraged by the scheduling of hearings and the
general atmosphere that I find here today.
Thank you, Mr. Chairman.
115
]Mi-. Kastenmkieu. Tliank you. Ms. Ringer, for a very comprehensive
review historically of the issues involved in copyright law revision.
The Chair will state, that at our next hearing, we will have Govern-
ment represented by three other entities, the Justice Department, the
Commerce Department, and the State Department, and to some extent,
other aspects will be more deeply explored with reference to the bill in
terms of its administration from the governmental point of view.
I haA^e at this point just a couple of questions and then I would like
to yield to my colleagues. From time to time there have been argu-
ments made that we could leave something out of the bill.
Indeed, from time to time, certain areas have not been covered in the
bill. But is it not the case, this being a unitied code, that the operation
of the bill does apply whether or not we specifically deal with a subject
or not? That is to say, all we have done in a sense is by our nonstate-
ment, to leave the matter somewhat unresolved in terms of potential
litigation?
Therefore, we can really not fail to deal with an issue. It will be
dealt with one way or the other. The code, title 17, will cover it. So we
have made a conscientious decision even by omission. Do you agree ?
Ms. PiiNGEK. I would agree. In 1909 there was probably no intention
to protect sound recordings. I think the legislative history would bear
this out although it is ambiguous. In the early 1970's there was an in-
crease in record piracy because of the increasing popularity of 8-track
cartridges. As a result, there was a major effort to g>et States to pass
legislation or to enforce common law protection of what were clearly,
in a layman's sense, published works because of the lacuna in the 1909
statute. There was no explicit protection. This issue went all the way to
the Supreme Court and the Supreme Court upheld the validity of a
State criminal statute against record piracy on the ground that Con-
gress had not preempted that protection since it had failed to act.
You may not even be refraining deliberately from giving protection,
which I think was the thrust of your question. You may, in fact, be
handing them State protection which is variable and inconsistent in
many cases and has a lot of imdesirable features. These were the very
imdesirable features that INIadison mentioned in the "P'ederalist
Papers'' when he was defending the copyright clause in the
Constitution.
Mr. Kastenmeier. By virtue of passing this bill, we will deal with
every issue. Whethei" we deal with it completely or not for the purpose
of resolving the issues involved is the only question, not whether it has
dealt with the four corners of the bill because the four corners of the
bill will presume to deal with everything in copyright.
"Ms. Ringer. I quite agree, Mr. Chairman.
]Mr. Kastexmeier. One of the apprehensions that, as we develop
this bill and probably future amendments to it, is that by creating
rights and extending rights, we might make the law very compli-
cated given the present state and future state of society, that the
business of getting clearances and knowing what levels of rights are
really being accorded may get extraordinarily difficult, particularly
for users.
What is your comment to that ?
Ms. RixGER. This has been a concern to us in the Copyright Office,
too. There are some situations — and I think cable is one of the best
examples I have ever seen — that are so intrinsically complicated that
you cannot deal with them in a broad-brush way.
116
I think that your efforts to deal with the CATV problem in 1965
which were attacked as being terribly complicated are extraordi-
narily clear and simple compared to the FCC regulations which in
effect did the same thing.
At the same time, I am very disturbed about the increasing reliance
on compulsory licensing to resolve difficult conflicts. The law is so out
of date that tliere are now areas in which authors are simply not being
protected at all. In these areas there have built up user interests that
are so strong and so deeply embedded that to impose outright copy-
right liability, with no if s, and's or but's, would create very serious
problems.
Because the 1909 law has been allowed to become hopelessly out of
date, you have to compromise, and the obvious compromise in many
of these cases is compulsory licensing.
When you begin this game in areas now protected under copyright,
where the protection already exists and licensing arrangements have
already been made, then I think you are doing something very drastic,
and the ultimate result could be substantial changes in the character of
copyrights that might actually make it harmful to the author rather
than helpful.
Mr. Kastenmeier. Now, I would like to yield to the gentleman from
California, Mr. Wiggins.
Mr. Wiggins. Following you will be many witnesses who will reflect
their economic interests and you may be one of the few witnesses who
do not have an obvious economic stake in this bill.
Can you help me with some of the problem policy issues which may
pervade all of these sections of the bill ? I think I can understand a
person's economic ax. I respect their points of view. But, I am not
sure I really understand the public policy issues involved and I would
like your assistance.
Ms. Ringer. The 1909 Joint Congressional Committee, in its report
No. 2223, made a statement which has been quoted many times and
which I agreed with at one time, but which I have ceased to agree with.
I will paraphrase it. It was that copyright is not for the protection
of the author, but for the public and that where the author's interests
and the public's interests conflict, the author must yield.
This sounds great and for a long time, I felt that this was probably
correct. But, the more I have looked upon the status of authors in this
country and the fact that the public interest is badly served when
authors are badly served, I have felt that too often the'public interest
has been identified with economic users rather than with authors.
In recent years, partly as a result of this whole revision exercise, I
have been trying to gage individual issues in terms of their impact
upon creativity and authorship, which I consider the ultimate public
interest.
The Constitution speaks of the desirability of promoting the prog-
ress of science and useful arts, science in the broad sense of learning or
knowledge, by offering protection for limited times to authors and
inventors.
It seems to me that it is this protection, tlie exclusive rights that are
supposed to be granted to authors, that is the ultimate public interest
that the Constitution and its drafters were thinking about.
117
I do not think that this has ever been fully or even partly realized
in any copyright law we have had in our entire history.
Mr. Wiggins. I was wondering if you would place the dissemination
for the benefit of the public — and I might add for the profit of the
disseminators — on an equal plane with the protection of the authors
and inventors ?
Ms. Ringer. Yes. I think that the system that we have had has been
based on the desire to induce dissemination, make works available
to the public by offering protection to authors.
I think that this system is now subject to some difficulty because of
the fact that the new technology has made it an absolute detriment to
disseminate. In other words, an author in certain situations who lets
the bird out of the cage, finds that there is no way to regain it, that
once he has made a tape and it has been played over the radio or tele-
vision, he finds suddenly it is being pirated or made in duplicates all
over the country.
It is very, very difficult in that situation for him to realize any
economic gain or reward for his creation and there may be situations
in which he would prefer to keep his biid in its cage, so to speak.
I am speaking in terms of music, but I think the example is better
in some areas where there is a more realistic possibility of exercising
complete control.
The task of your committee, as I see it, is to try in some way to
evaluate the impact of the new dissemination media on the basic task
of giving authors a reasonable return and inducing them to let the work
go out to the public.
We are in really big trouble on this, in my opinion, at the moment.
Mr. Wiggins. Thank you.
Thank you, Mr. Chairman.
Mr. Kastenmeier. The gentleman from California, Mr. Danielson ?
Mr. Danielson. I wish to thank Ms. Ringer, JNIr. Lorenz, and
IMr. Kaminstein for their contribution this morning. It was most
helpful.
Will iVIs. Ringer be back again ? I have a couple of questions.
Mr. Kastenmeier. As a matter of fact, yes. We will have Ms. Ringer
back perhaps at an earlier time than later because it is obvious today
we will not have time for extended examination on a number of issues
which have been raised.
Mr. Danielson. All right.
Beyond that, I want to thank my colleague, Mr. Wiggins, for raising
the point he just did raise and for your response to it. It was directly
responsive to one question in my mind. As I read the Constitution, the
justification for copyright in the first place — and the only one in the
Constitution — is to promote the progress of science and useful arts.
So far as I am concerned, any legislation which I will support will
have to be calculated to achieve that end, to promote the progress of
science and useful arts.
The copyright is the means through which that end is accomplished
and that will be, I believe, the general rule that I am going to follow
hei'e.
I wish to thank Mr. Kaminstein and commend him for the magnifi-
cent perception of the legislative process which is set forth in the next
lis
to the last paragraph of his statement, and of the responsibility of the
Congress in meeting that process.
I wish every legisLator would include that as part of his morning
devotions or ablutions.
Mr. Kastenmeier. The gentleman from Massachusetts, Mr. Drinan ?
Mr. Drinan. I want to welcome Ms. Ringer back. I am sorry I had
another subcommittee. That subcommittee was about bankruptcy, and
the Congress has been even more apathetic about bankruptcy than
about copyright laws.
I thank you for your appearance here today and I wish to thank the
other two witnesses.
Thank you.
Mr. Kastenmeier. The gentleman from New York, Mr. Pattison?
Mr. Pattison. I have no questions.
Mr. Kastenmeier. I am astounded. [Laughter.]
Probably it is the better pait of wisdom, since the House is in ses-
sion, to terminate at this period and to thank all three witnesses,
Mr. Lorenz, Mr. Kaminstein, and Ms. Ringer, for ilhuninating the
subcommittee and updating it on the subject of copyright.
Particularly what Ms. Ringer has contributed this morning will
raise a number of other issues, other questions, with which I am in
entire agreement with the gentleman from California, Mr. Danielson,
on and suggest further colloquy.
Rather than get into those thickets at this hour, T think we will let
the morning testimony stand. It does sound not only hopeful, but gives
us the frame of reference for now proceeding hopefully to a success-
ful end.
In conclusion the Chair desires to again thank our witnesses this
morning.
Mr. Danielson. Is there any chance of getting a larger room for
tomorrow ? There are a lot of people standing up back there that would
rather sit.
Mr. Kastenmeier. We will do what we can do in that regard. The
committee is very impressed by the public interest. We will try to bring
additional chairs in and accommodate those standing today.
Tomorrow we wnll have representatives of the Justice Department,
Commerce Department, and the State Department on the question of
general copyright revision. Until then, the subcommittee stands
adjourned.
[Whereupon, at 12 :10 p.m., the subcommittee adjourned, to recon-
vene at 10 a.m., Thursday, May 8, 1975.]
COPYRIGHT LAW REVISION
THURSDAY, MAY 8, 1975
House of Represextatives,
Subcommittee on Courts, Civil Liberties,
AND the Administration of Justice
OF the Committee on the Judiciary,
Washington^ D.C.
The subcommittee met, pursuant to call, at 10 :10 a.m. in room 2226,
Rayburn House Office Building, Hon. Robert W. Kastenmeier [chair-
man of the subcommittee] presiding.
Present : RepresentatiA'es Kastenmeier, Danielson, Drinan, Badillo,
Pattison, and Railsback.
Also present : Herbert Fuchs, counsel ; Bruce A. Lehman, counsel ;
and Thomas E. Mooney, associate counsel.
jNIr. Ivastenmeier. The committee will come to order. This morning
is the second morning devoted to hearings on the subject of H.R. 2223
and other bills relating to the general revision of the copyright law.
"We are pleased to have as our first witness this morning, represent-
ing the State Department, Deputy Assistant Secretary for Commercial
Affairs and Business Activities, the Honorable Joel W. Biller. Mr.
Biller is accompanied by Philip R. Trimble, Assistant Legal Adviser
for Economic and Business Affairs.
Is Mr. Biller here ?
Mr. Biller. Yes.
Mr. Kastenmeier. We will be happy to hear what you have to say.
TESTIMONY OF JOEL W. BILLER, SECRETARY FOR COMMERCIAL
AFFAIRS AND BUSINESS ACTIVITIES, DEPARTMENT OF STATE
Mr. Biller. Thank you, ]Mr. Chairman. Mr. Trimble is sitting on
my right and Mr. Bushnell is on my left.
I greatly appreciate having the opportunity to present the views
of the State Department on H.R. 2223, for the General Revision of
the Copyright Law, title 17 of the United States Code, and for other
purposes. Although we take exception to one section in this bill, the
Department otherwise supports the enactment of this important
legislation.
As the committee knows, the present U.S. copyright law is essen-
tially the same as the act of 1909. Since that date, great advances have
been made in teclinology and techniques for communicating printed
matter, visual images, and recorded sounds. These advances have
created new industries and methods for the reproduction and dissemi-
nation of copyrighted works.
(119)
120
The State Department believes that a modernization of the copy-
right law to take into account the important technical advances in
the copyright field is in the interest of both the authors and the users.
My comment will be directed to those sections of H.R. 2223 which
relate to the conduct of our foreign relations and therefore are of
special interest to the Department of State. Tliese sections are the
following: Section 104 regarding subject matters of copyright and
national origin ; section 302 on the duration of protection ; and section
601 on restrictions against importation of certain copyrighted mate-
rials from other countries.
Section 104 is relevant to our international interests in that it speci-
fies the occasions when foreign works, that is, works produced by
nationals of countries other than the United States, will be granted
U.S. copyright protection. Essentially, section 104 continues the reci-
procity approach contained in the present law with respect to pub-
lished works; that is, the United States gives foreign citizens
protection equal to that given by the foreign countiy to U.S. citizens.
It is tlius consistent with generally accepted international practice in
most countries and has the support of the Department.
Of particular relevance to the Department's interests is section 104
(c) ("Subject Matter of Copyright: National Origin") which deals
with the possibility that a foreign government might take action in
the U.S. courts to divest its citizens or authors of rights to their works
or to block publication of their works within the United States. We
do not have any evidence that an action of this nature is likely to occur.
But if it did, it would represent undesirable official interference with
the freedom of individual expression, and we therefore believe that it
should be guarded against.
It is important to note that the international copyright system
embodied in the I^niversal Copyright Convention is intended to
"insure the respect for the rights of the individual and encourage the
development of literature, the sciences, and the arts." These convention
obligations should be kept in mind with respect to any action to
suppress free communication in the United States of ideas and litera-
ture unacceptable to authorities of another member state of the
convention.
We understand that other U.S. Government agencies are drafting
language to accomplish the purpose of section 104(c) in a technically
different manner. We have not reviewed these proposals and there-
fore are unable to express our opinion on them. However, we sup-
port the aim of appropriately drafted legislation that would deny
effect in U.S. courts of a foreign nation's laws or practices designed
to deprive the authors of that country of the rights to publish and
protect their literary and artistic works in the United States. ,
Section 302 deals with the duration of copyright, that is, term of
protection. It is one of the most important, if not the most im]:)ortant
provision in the copyright revision bill. Essentially, section 302(a)
provides for a copyright term of the life of the author plus 50 years
after his death. Such a term of protection would be more in line
with the practice of most countries of the international copyright
community and would also remove a major obstacle to the possible
adherence of the United States to the Berne Convention for the Pro-
tection of Literary and Artistic Works. Our membership in the
121
Berne Convention would facilitate and simplify international copy-
right protection for U.S. nationals. Therefore, we strongly support
the term of copyright protection proposed in section 302.
Section 601 concerns the so-called "manufacturing clause" which is
designed basically to protect the U.S. printing industry. As you know,
this section prohibits the importation into or the distribution within
the United States of English language books authored by U.S. na-
tionals living in the United States, or domiciliaries, unless the copies
are produced in, or are made from type set in, or plates made in, the
United States or Canada.
We are pleased that section 601 would, on the whole, move in the
direction of liberalizing the present manufacturing clause. For ex-
ample, a violation of the manufacturing clause as regards a book
would not ailect tlie right of the copyright proprietor to authorize a
motion picture version or other use of the book. It would merely
affect enforcement of copyrights with respect to publication as a
book. Further, the number of copies manufactured abroad that may be
imported has been increased from 1,500 to 2,000.
Despite this liberalization, however, section 601 would continue
the protectionist features of the manufacturing clause. This kind of
protection is fundamentally inconsistent with basic U.S. policy in
international trade. For several decades we have pursued a policy of
reducing tariffs and nontariff barriers in the interest of promoting an
open international economic system. We believe that the broad trading
interests of tlie United States and its people continue to be the best
serv^ed by a general reduction of trade barriers including nontariff
barriers. This is the policy we are carrying forward in the current
multilateral trade negotiations being undertaken in Geneva under
the authority of the recently enacted Trade Act.
During this round of negotiations attention will be focused par-
ticularly on nontariff barriers, and one of our major negotiating
objectives will be to reduce or eliminate nontariff barriers of other
countries which restrict U.S. trade. We believe that it is important
to note this inconsistency in considering the continuation of the manu-
facturing clause.
Furthermore, the exception for Canada introduced by tliis bill into
the manufacturing clause would violate our obligations under the
GATT and various bilateral treaties. The United Kingdom has pro-
tested and we expect that other foreign countries which are being
discriminated against by this measure will protest, thereby intro-
ducing an element of discord and potential retaliation into our rela-
tions with those countries.
Specifically, Mr. Chairman, the exception would violate our obli-
gations under article XIII of the GATT which requires nondiscrim-
inatory application of quantitative restrictions, and the United States
would be obligated to seek a special waiver from the GATT contract-
ing parties to permit this exception. This procedure would be particu-
larly undesirable at this time in view of the opening of the new
round of multilateral trade negotiations at Geneva. The exception
would also violate commitments in various FCN treaties, which we
have concluded with most of the other industrialized nations.
These treaties normally impose obligations on the United States to
notify and consult before it introduces nontariff barriers on important
57-786— 76— pt. 1 9
122
products of the other country, and forbids the prohibition of the
other country's products unless the product of third countries are
similarly prohibited.
In conclusion, the Department of State believes that the updating
of the U.S. copyright law is most desirable, and we support the enact-
ment of H.Ii. 2223. A modernization of the copyright law to take
into account the important technological advances in the copyright
field is in the interest of all members of the copj^right community. It
is also important in bringing the United States in step in copyright
•with the other principal countries of the world. We hope, Mr. Chair-
man, that the objections to the bill that I have noted will be given
serious consideration by your committee.
Thank you, Mr. Chairman.
Mr. Kastenmeier. Thank you, Mr. Biller. I appreciate your state-
ment and your appearance. In the past, we have had ]Mr. Harvey Win-
ter from time to time representing the De|)artment and we know him
well.
May I ask as to what extent does your Department coordinate its
view with respect to the legislation under consideration with either
the Copyright Office, the Department of Commerce or the Department
of Justice ?
Is there any particular coordination of views with respect to, say,
representing the view of the Administration on the bill?
Mr. BiLT.ER. Yes, Mr. Chairman, I think there is. We maintain daily
contact Avith other agencies on the international aspects of the bill.
We are aware of the views of the other agencies and certainly on an
informal basis there is a great deal of consultation.
Mr. Kastenmeier. You indicated you opposed one section, referring
to the manuf actuiing clause section.
]\fr. Biller. Yes, sir.
Mr. Kastenmeier. But, you indicated a reservation about section
104(c). I wonder whether you could, by using a hypothetical, demon-
strate precisely the effect of that in terms that we would understand.
For example, if country x would insist that copyrights within
its nation were, in fact, state held or state owned it could move in our
forums to represent that state as the holder of a copyright, notwith-
standing the fact that the author we would normally recognize him to
be a different entity than the state. Is that what you're driving at?
Mr. Biller. No ; our position is that we favor the enactment of that
section in order to promote to the maximum the individual freedom
of authors. If a particular author lived in a country whose domes-
tic system required that the government of that country hold the cop}-
right and that author managed to publish his work in the United
States, even though the government of his country was the legal holder
of the copyright, we would favor the enactment of this legislation to
prevent that government from suing in the U.S. courts to prevent the
publication.
Mr. Kastenmeier. I can understand the policy reasons on both sides
of that one. It would be very difficult. I understand the basic motiva-
tion.
How could you expect to have some continued comity with that gov-
ernment with respect to the field of its endeavor ?
Mr. Biller. Well, there are two points I would like to make. First,
we believe that the importance of promoting freedom of thought and
123
the importance of communication across international borders is moi-e
important than some of the other considerations involved. Second,
with regard to some of the countries which have this kind of system, we
have no indication whatsoever that they have any intention of bringing
suit in American courts.
So, we don't believe it is a real problem that we would have. In the
case of the government of the Soviet Union, for example, which has
such a system, we have no indication that they will bring suit in
American courts to prevent the publication in the United States of
works of dissident Soviet authors.
Mr. K.\STENMEiER. I See. It is the policy of the State Department,
notwithstanding the success of the Universal Copyright Convention
and its membership, that we should be in a position to adhere to the
Berne Convention nonetheless ; is that correct ?
Mr. BiLLER. Yes.
Mr. Kastenmeier. In your view, does the passage of this bill, in its
present form, qualify us for entry, for adherence to the Berne
Convention ?
Mr. BiLLER. What it would do, Mr. Chairman, is remove one of the
principal obstacles that noAv exists to our adherence, that being the
term of protection, by extending the term of protection to the lifetime
of the author plus 50 years. That would remove that ob-;tacle because
that is the term provided for in the Berne Convention. There are some
other obstacles which would have to be overcome, but I think it would
be quite possible to work them out.
Mr. Kastenmeeer. Are those obstacles outside of the perimeter of
what the statutes provide for?
IMr. BiLLER. Yes, sir.
Mr. Kastenmeier. You have discussed the term in that connection ?
Is it not the fact that there are one or more countries moving away
from life plus 50 ; is there not at least one major European comitry
that has moved to a longer term than that ?
Mr. BiLLER. I am not aware of it, Mr. Chairman.
Mr. Kastenmeier. As far as you are aware, all the Western Euro-
pean countries have life plus 50 ?
Mr. BiLLER. I believe so.
Mr. Kastenisieier. Perhaps I ought to put it this way, what coun-
tries in the world other than ourselves have a term other than life plus
50?
Mr. BiLLER. I don't have a list of them with me. If you would like,
I can submit such a list for the record.
Mr. Kastenmeier. Thank jou. We would appreciate that.
Thank you very much, for your testimony.
[The material referred to follows :]
A Compilation op National Copyright Duration Standards for Literary,
Musical, and Artistic Works
background
The copyright duration of life of the author plus 50 years was first advanced
as an international standard in the 1908 revision of the Berne Union. Although
this term was not made obligatory at that time, in 1948 the Berne Convention
was amended to make life of the author plus 50 years the minimum term of
duration for members of the Convention. Today the "life plus fifty" standard is
the most widely accepted standard for the duration of copyright protection.
The following list of national copyright durations was compiled from Copv-
right Laws and Treaties of the World or from other more recent sources.
124
Life of the Author plus 50 years (7^ countries)
Argentina ; Australia ; Austria ; Belgium ; Bulgaria ; Burundi ; Cameroon ;
Canada; Central African Republic; Ceylon (Sri Lanka) ; Chad; China, Republic
of; Congo (Brazzaville) ; Costa Rica; Cyprus; Czechoslovakia; Dahomey; Den-
mark ; Ecuador ; Egypt, Arab Republic of ; El Salvador, Republic of ; Ethiopia,
Empire of ; Fiji ; Finland ; France ; Gabon ; German Democratic Republic ;
Greece ; Guatemala ; Holy See ; Hungary ; Iceland ; India ; Indonesia ; Republic
of Ireland; Israel; Italy; Ivory Coast; Japan; Laos; Lebanon; Liechtenstein;
Luxembourg; Madagascar; Mali; Monaco; Morocco; Nepal; Netherlands; New
Zealand ; Niger ; Norway ; Pakistan ; Paraguay ; Peru ; Philippines ; Portugal ;
Rwanda ; San Marino ; Senegal ; Sierra Leone ; Singapore ; South Africa, Repub-
lic of; Sweden; Switzerland; Syrian Arab Republic; Togo; Tunisia; Turkey;
Uganda ; United Kingdom ; Venezuela ; Yugoslavia ; and Zaire.
Xdfe of Author plus 20 years
Poland.
Xife of the Author plus 25 years (IS countries)
Ghana ; Iraq ; Kenya ; Liberia ; Libya ; Malawi ; Malaysia ; Malta ; Mauritius ;
Nigeria; Tanzania, United Republic of; Union of Soviet Socialist Republics;
and Zambia.
-Life of the Author plus 30 years (9 countries)
Bolivia ; Chile ; Dominican Republic ; Iran ; Jordan, Hashemite Kingdom of ;
Korea ; Mexico ; Nicaragua ; and Thailand.
'Life of the Author plus ^0 years
Uruguay.
hife of the Author plus GO years
Brazil.
Life of the Author plus 70 years
Germany, Federal Republic of.
Life of the Author plus 80 years (4 countries)
Colombia ; Cuba ; Panama ; and Spain.
Vai-iable Copyright Term
In the following countries the duration will vary depending on the category
of the author's heirs. In all the countries listed below, an author enjoys copy-
right protection during his lifetime. The term beyond the author's life, however,
is controlled by the nature of the author's heirs. (3 countries) — Albania; Haiti;
and Romania.
Miscellaneous Categories (Unrelated to life of the Author)
Afghanistan — 20 years ; Burma, Union of — 10 years ; Honduras — 10, 15 or 20
years ; and United States — 28 years, renewable for 28 years.
Countries without copyright laws, or for ichich accurate information is unavail-
able
Algeria ; Andorra ; Bahrain ; Barbados ; Botswana ; Cambodia ; China, Peoples
Republic of; Equatorial Guinea; Gambia; Guinea, Republic of: Guyana; Ja-
maica ; Kuwait ; Lesotho ; Maldive Islands ; Mauritania ; Mongolia ; Nauru, Re-
public of ; Saudi Arabia ; Somalia ; Southern Yemen ; Sudan ; Swaziland ; Trinidad
and Tobago ; Upper Volta ; Viet-Nam, Republic of ; Western Samoa ; and Yemen.
Mr. Kastenmeier. I would like to yield to the gentleman from
Illinois.
Mr. Railsback. How serious is the Canadian exception you have
alluded to on page G ; what effect could that have as far as preventing
us from joining the Berne Convention ?
]Mr. BiLLEK. I think the effect on our general trade policy and the
negotiations we are engaged in in Geneva are more serious than the
effect on our joining the Berne Convention.
What the provision does, Mr. Congressman, is introduce a new
element of discrimination, which is quite clear and is patently dis-
criminatory, in our legislation.
125
Mr. Eailsback. The Canadian exception?
Mr. BiLLEK. Yes, sir. This would occur at a period in time where
we are engaged in major initiatives to have other countries reduce or,
hopefully, eliminate their discrimination and nontariff barriers. This
would be adding a discriminatory character to a continuing nontariff
barrier.
Mr. Eailsback. So, now your authors publish not only in this coun-
try, but also in Canada within a 30-day period in order to derive some,
benefits that they otherwise would not have?
Mr. BiLLER. The Canadian exception does not exist now.
Mr. Eailsback. The exception does not exist now?
Mr. BiLLER. It would be introduced by the legislation.
Mr. Eailsback. I guess I am referring to something else ; I am. a
novice in this.
Mr. BiLLER. The 30-day provision is, if a work is published within
30 days of its first publication in the United States, it is deemed to
be published simultaneously in other countries.
Mr. Eailsback. Thank you. I yield my time.
Mr. IvASTENMEiER. The gentleman from* California, Mr. Danielson.
Mr. Danielson. In your statement you used the acronym GATT ;
what does that mean?
Mr. BiLLER. Tliat is the General Agreement on Tariffs and Trade.
Mr. Danielson. I assume that is a treaty of some sort, is that
correct ?
Mr. BiLLER. The General Agreement on Tariffs and Trade, Mr.
Danielson, is a multilateral treaty which we entered into with most
of the major trading comitries of the world in late 1948 by which we
established the rules that establish international trade.
Mr. Danielson. It is a treaty?
Mr. BiLLER. It is an executive agreement, Mr. Danielson, I am told.
Mr. Danielson. What is an FCN?
Mr. BiLLER. FCN stands for Friendship, Commerce, and Naviga-
tion. Treaties of Friendship, Commerce, and Navigation and the stand-
ard types of bilateral treaties which we enter into with other countries
to assure them we will not discriminate against them or their nationals.
Mr. Danielson. Are they uniformly a two-party agreement?
Mr. BiLLER. Yes, they are always bilateral, and they follow the same
nondiscriminatory pattern.
Mr. Danielson. Thank you.
Mr. Kastenmeier. The gentleman from Massachusetts.
Mr. Drinan. I have no questions but I want to thank Mr. Biller. I
would just like to say that I commend him for his testimony and it is
nice to be in agreement with the Department of State from time to
time.
Mr. Kastenmeier. The gentleman from New York.
Mr. Badillo. I just wonder what is the Department's feeling about
other U.S. agencies that are drafting language of their own. Who is
drafting language; I understand there are other agencies drafting
their own language ?
Mr. Biller. The Copyright Office, I believe, has some language of
its own. It is not our intent to cause bureaucratic problems. We want
to make clear that we agree with the language.
Mr. Drinan. But the present language is not acceptable ?
126
]\Ir. BiLLER. No; it is acceptable. But, we would support any alter-
native language if it were to achieve the same objective.
Mr. Kastenisieier. The gentleman from New York, JNIr. Pattison.
Mr. Pattison. I liave no questions.
Mr. Kastenmeier. I have just one. You devoted quite a bit of your
statement to the manufacturing clause. Really, 8 to 10 years ago we
tried to limit tlie effect of it on the theory that eventually it might
well be phased out consistent with national policy.
I am not sanguine about how it presently appears in H.R. 2223. I
rather agree with the thrust of your statement and wonder it if might
be useful for our purposes intermitionally to place a further restric-
tion on that section which would limit the effect of, actually limit the
effect of the manufacturing clause to a term certain, for example, 6
years from date or some other such specific period of time wherein-
after it would no longer have any force or effect'^ Would that not be
helpful to the State Department with respect to its dealings with
Great Britain and otlier countries?
]Mr. BiLLER. Yes. sir. I think it would. AYe fully realize that there
could be a difficulty posed for some American manufacturers if pro-
tection like this, which has existed in legislation for many years, were
suddenly terminated.
If the Congress should decide that in oider to achieve a desirable
transition that some sort of phaseout period is necessary, we would
support such a position.
Mr. Kastenmeier. I thank you, Mr. Biller and your colleagues this
morning.
]Mr. Danielson. May I ask an additional question ?
Mr. Kastenmeier. Certainly.
]Mr. Danieeson. Concerning section 101: (c) I have been puzzling
here. Maybe you can give me a short cut. Does a foreign state have
standing in the U.S. courts to bring the kind of an action contem-
pl ated, on the communities referred to in 101: (c) ?
Mr. Biller. At the present time ?
Mr. Danielson. Yes.
Mr. Biller. Yes, sir.
Mr. Danielson. In another sub of this committee — Mr. Eailsback
was on it, I believe — we have been considering the advisability or the
lack thereof permitting foreign states to bring action in the United
States and you feel it does have that?
Mr. Biller. I don't know, I just wanted to try and clarify it for you.
Mr. Kastenmeier. We appreciate your appearance here this morning
and that of your colleagues. Thank you.
[Witness excused.]
Mr. Kastenmeier. The Chair would like to call upon Deputy Assist-
ant Attorney General Irwin Goldbloom of the Civil Division of the
Department of Justice. Would 3'ou please identify your colleagues for
the committee.
Mr. Goldbloom. On my left is John Murphy and on his left is JMiles
Ryan. On my right is Michael Werth. All of these gentlemen are from
the Justice Department.
Mr. ICastenmeier. I notice that you have a 36-page statement which
you may deliver in its entirety or if you care to, you may summarize.
Mr. Goijjbloom. Thank you.
127
TESTIMONY OF IRWIN GOIDBLOOM, DEPUTY ASSISTANT ATTOR-
NEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE
Mr. GoLDBLooM. Mr. Chairman, I am pleased to respond to the
conmiittees invitation to present the views of the Department of
Justice on H.K. 2223, a bill for the general revision of the copyright
law, title 17 of the United States Code, and for other purposes.
We are in sympathy with the general purpose of title I of the bill, to
provide a thorough revision and updating of the copyright law, title
17, United States Code. However, as set out below, we reconmiend
certain modifications in the proposed revision. We oppose title II
of the bill which creates a new type of intellectual property, a hybrid
between a copyright and a design patent.
H.R. 2223 and its companion bill, S. 22, are nearly identical with
S. 1361 as passed by the Senate in tlie 93d Congress on September 0,
1974. There are, however, technical and perfecting amenchnents and
changes required by the enactment of Public Law 93-573, providing
for interim copyright extension and increased penalties for tape piracy.
A section-by-section analysis of S. 13G1 is part of Senate Ileport Xo.
93-983, 93d Congress, at pages 102 to 228. Further details as to the
history of this copyright revision bill appear in the same report at
pages 101 to 103. The summary below is specifically directed to fea-
tures of the Bill of particular concern to this Dei>artment.
Section 107 relates to the "fair use" doctrine. This is fully dis-
cussed in Senate Report No. 93-983, pages 115 to 120. The scope of fair
use in copying is illustrated to include reproduction by a teacher
or a student of a small part of work to illustrate a lesson (S. Report
93-983, p. 115).
This example, therefore, does not include reproduction of the
entire work to illustrate a lesson. In determining whether the use made
of a work in a particular case is a fair use, a court is to consider as
factors the purpose and character of the use, the nature of the copy-
righted work, the amount and substantiality of the portion used in re-
lation to the co])yrighted work as a whole, and the effect of the use
upon the potential market for or value of the copyrighted work.
As to the reproduction of entire works for classroom use, the doc-
trine of fair use would be applied "strictly" (S. Report, 93-983. p. 117) .
Sections 108, 110, and 111 cover exemption from liability for copy-
right infringement in the fields of library and archive reproduction
(sertion 108V the exemption of certain performances and displays,
such as in classrooms in face-to-face teaching activities of a_ non-
profit educatioual institution (section 110) and the retransmission
of a primary transmission simultaneously with the primary trans-
mission or nonsimultaneously with the -primary transmission if by
a "cable system" outside defined geographic areas ("secondary trans-
missions" of section 111) .
Section 302 establishes a new term for the duration of roDyright.
Crenerally, this is for a term consisting of the life of the author and
50 years after his death. In the case of joint works, the period of 50
years commences upon the death of the last surviving author. For
finonymous works, pseudonymous works, and works made for hire,
the copyright period is for a term of 75 years from the year of its
128
first publication, or a term of 100 years from the year of its creation,
whichever expires first.
Where one or more authors are identified for an anonymous or
pseudonymous work before the end of the copyright term, the longer
period of copyright terminating 50 years after the death of the author
then applies.
Section 405 deals with the effect of the omission of the copyright
notice. Section 411 covers infringement actions in certain situations.
Section 506 contains special provisions applying to persons who
infringe willfully and for purposes of commercial advantage. With
respect to copyright in a sound recording, for the first such offense, a
person is fined not more than $25,000 or imprisoned not more than
1 5'ear, or both.
For any subsequent offense, a person is fined not more than $50,000
or imprisoned not more than 2 years, or both. Section 507 provides a
3-year statute of limitations for both criminal proceeding-s pursuant
to provisions of the bill after the cause of action arose, under the
provisions of Section 116 and 506 and for civil actions after the claim
accrued.
Section 601 affords preferential protection to publishers and print-
ers of the United States and Canada, Report 93-983, pp. 195-200.
Sections 801-809 are concerned with the Register's duties to col-
lect royalties and make determinations concerning the adjustment
of copyright royalty rates for certain uses where compulsory licenses
are provided by the bill.
They also relate to his duties to determine in certain circumstances
the distribution of these royalties deposited with the Register of Copy-
rights. Section 803 provides for selection of membership of the tri-
bunal to make necessary detenninations with respect to royalty mat-
ters, to be on the basis of a list of names furnished by the American
Arbitration Association to the Register of Copyrights. Section 804
provides for procedures to be followed by the tribunal in making its
determinations. Subsection (e) of section 804 directs that the tri-
bunal shall render a final decision in each proceeding within 1 year
from the certification of the panel, certified by the Register of Copy-
rights on the basis of the names furnished by the American Arbitra-
tion Association. This subsection further provides that the Senate
Committee on the Judiciary and the House of Representatives Com-
mittee on the Judiciary, upon showing of good cause, inay waive this
requirement of the rendering of a final decision within 1 j^ear from the
certification of the panel in a particular proceeding.
The judicial review for tribunal final determinations, provided in
section 809 (concerning the distribution of royalty fees), is limited.
A court may vacate, modify or correct such a determination if it was
procured by corruption, fraud or undue means, where a member of the
panel was guilty of misconduct by which the rights of anj^ party were
prejudiced.
Provisions for the protection of ornamental designs of useful articles
appear in title II of the bill. Section 201 provides that authors or
proprietors of an original ornamental design of a useful article may
secure a period of protection, except for certain subject areas set out
in section 202, for a period provided in section 205. Section 201 con-
129
tains definitions of the terms "useful article", "design of a useful
article", "ornamental" and "original" as needed for purposes of the
particular protection provided by this title. Section 204 provides that
protection commences on the date when the design is first made pub-
lic, either by being exhibited, publicly distributed, or offered for sale
or sold to the public. Section 205 provides that the term of protection
extends for 5 years, subject to being renewed for an additional 5 years
prior to the expiration of the initial term. Section 206 provides for cer-
tain design notices to be applied to the products protected, and section
207 limits recovery for infringement if the design notice requirement
of section 206 have been omitted-
However, actual notice of design protection to a particular per-
son can take the place of the design notice requirement of section 206.
Section 209 of title II provides for loss of protection if registration
of the design is not macle within 6 months after the date on which
the design was first made public, who may make application for re-
newal registration of a design protected imder the bill, how and under
what conditions and with what supporting papers a design protected
under the bill can be renewed.
Section 212 of title II deals with the examination of the design
application and provides for cancellation of registrations on applica-
tion of a person who believes he is or will be damaged by a registra-
tion under this title. Grounds for cancellation are that the design
is not subject to protection under the provisions of the title.
Section 220 of title II provides remedies for infringement of a de-
sign protected under this title. It provides for a civil action to have
judicial review of a final refusal of the Administrator to register the
design as for infringement if commenced within a time period speci-
fied by the Administrator of the title, but not less than 60 days after
the decision, and permits simultaneous remedy for infringement by
the same action if the court adjudges the design subject to protection
under this title. This would appear to mean that the infringer would
liave to be joined as a party defendant with the Administrator of
this title. The requirements for such an action are that the design
proprietor has filed and prosecuted to final refusal an application
for registration of the design, a copy of the complaint in the action
is delivered to the Administrator within 10 days after commencement
of the action, and the defendant has committed acts which would con-
stitute infringement of the design.
Section 221 of title II gives courts jurisdiction of actions under this
title and authority to grant injunctions to prevent infringement, in-
cluding temporary restraining orders and preliminary injunctions.
Section 222 of title II relates to recover}^ of infringement, setting
maxunum amounts of recovery per infringing copy by way of com-
pensation and provides for the delivery for destruction or other dis-
position of any infringing articles.
Section 223 of title II provides for cancellation of a registration of a
design by a court and certification by the court of such order to the
Administrator.
Section 227 of title II provides that copyright protection under title
I, when utilized in an original ornamental design of a useful article,
may still be a design work eligible for protection under the provisions
of this title.
130
The issnance of a design patent for an ornamental desi^'n for an ar-
ticle of manufacture under the patent laws, title 35 United States
Code, terminates any protection of the desian under this title.
Section 229 of title II provides that nothing in this title amiuls or
limits common law or other rights or remedies available to a person
with respect to a design which has not been made public as provided
in this title or any trademark right or right to be protected against
unfair competition.
Section 232 of title II amends various other statutes. Of particular
importance to the Departuicnt is the revision proposed for title 28.
United States Code, § 1498 (a) to provide that whenever a registered
design or invention is used or manufactured by or for the United
States without license of the owner thereof, the owner's remedy shall
be by action against the United States in the Court of Claims for recov-
ery of reasonable and entire compensation. Use or manufacture of
a registered design or invention by a conti-actor, subcontractor or any
person, firm or corporation for the Government and with the author-
ization or consent of the Government is to be construed as use or manu-
facture by or for the United States.
Use or manufacture by or for the United States of any article owned,
leased, used by or in the possession of the United States prior to, in the
case of an invention, July 1, 1918, and for registered designs, prior
to July 1, 1978, is not to be the basis of an award under this section.
Government employees have the right to sue the Government under
this section except when in the position to order, influence or induce use
of the registered design or invention by the Govermnent.
Further excluded as a basis for claim under this section are claims by
a registrant or patentee or assignee thereof when the design or inven-
tion was related to the official functions of the employee, in cases in
which such functions included research and development, or in mak-
ing of which Government time, materials or facilities were used.
Section 233 provides that title II of the bill shall take effect 1 year
after enactment of this act.
Section 234 precludes a retroactive effect for the provisions of the
design protection of the bill.
Section 106 states generally the basic rights of copyright owners.
Following sections of the same chapter set forth limitations and excep-
tions to those rights. The public interest in the promotion of education
and scholarly pursuits calls for a careful consideration of such circum-
stances as may impede the dissemination of knowledge. In this regard,
section 107 of the bill, dealing with "fair use" of copyrighted informa-
tion, leaves unclear the extent to which librarians can reproduce works
for use in libraries.
It would seem in the public interest to work an accommodation be-
tween the copyright and such reproduction. But, as a doctrine applied
on a case-by-case basis, "fair use" renders it uncertain whether, with-
out infringement, librarians or library patrons can make copies of
library materials for the patrons' use. Because of the advantages of the
economical and speedy means of reproduction now available in li-
braries, it would be socially desirable not to discourage use thereof
by uncertainty over the extent of the "fair use" doctrine.
Thus, we strongly believe that a definition in the bill of the doc-
trine as applied to such reproduction in libraries is definitely needed.
131
Moreover, defining the meaning of "fair use" in tliis connection also
could serve to reduce uncompensated infringement. To carry out our
suggestion to give maximum certainty as to "what is a fair use," and
give more meaningful scope to the exemptions from copyright liability
of section 108 discussed below, we suggest the following changes : Sec-
tion 107, last line, p. 9, line 9, change "work" to
"work; provided that nothing contained in this section shall be con-
strued to limit the use by reproduction in whole or in part in copies
or phonorecords or by other means specified in section 106 whenever
used in nonprofit educational activities."
Eeason : Clarity of scope of fair use for educational activities.
Section 108(d), lines 5-6, p. 10, lines 1, 2, delete "of a small part".
Reason: Libraries should be able to reproduce entire work for
scholarship.
Section 108(e). lines 4-7, p. 10, lines 13-16, delete "if the library or
archives has * * * at a fair price,"
Reason : Too difficult and cumbersome to make purchase investiga-
tion ; discourages use.
Section 108, in subsection (a), provides that it shall not infringe a
copyright for a library or archives to reproduce or distribute no more
than one copy or phonorecord of a work under conditions specified in
subsequent parts of the section. These conditions require, among other
things, that the reproduction or distribution be made without any
purpose of commercial advantage and that the collections of the li-
brary or archives involved be open to the public or available to spe-
cialized researchers, whether or not affiliated with the libraiy or ar-
chives involved or with the institution of which the libraiy or archives
is a part. Under subsection (b), the rights of reproduction and dis-
tribution free from liability would apply to a copy or phonorecord of
an unpublished work duplicated in facsimile solely for preservation
and security or for deposit for research use in a library or archives
of the type covered by the section.
Under subsection (c), the exemption from infringement would ap-
ply to a duplication in facsimile of a published work solely for re-
placement of a copy or phonorecord that is damaged, deteriorating,
lost or stolen, if after reasonable eifort it has been determined that an
unused replacement cannot be obtained at a fair price.
The rights of reproduction and distriJxition under section 108 ex-
tend to the isolated and unrelated reproduction or distribution of a
single cop3'^ or phonorecord of either a published or unpublished work
on separate occasions unless the library or archives is aware or has
substantial reason to believe that it is engaging in a related or con-
certed reproductioji or distribution or engages in a systematic repro-
duction or distribution of a copy of an item forming part of a copy-
righted collection or periodical issue or of a copy or phonorecord of a
small part of any other copyrighted work.
As we read this provision, it will not prevent libraries and archives
from reproducing works in machine-readalDle language in connection
with the storage and use of computerized information systems. "VVe
hope that the House legislative history of the bill will clearly support
this construction, for the storage and use of data in such systems is of
great importance to repositories and sources of scholarly research ma-
terial. To impose copyright liability impeding the storage of such
132
'data would be socially undesirable. If our interpretation of section
108 is wrong, we recommend that the section be changed to extend the
applicable exemption to reproduction in machine-readable language
for storage and use in information systems.
The ease of transfer of computerized data is another area in which
H.R. 2223 raises a problem. Universities, research agencies, govern-
ment, and private industry are developing information networks using
computers and other electronic equipment to speed the transfer of
information from source to user.
H.R. 2223 does not provide a method by means of which informa-
tion systems users can easily obtain the permission of copyright own-
ers for use of their material. The difficulty and loss of time entailed in
many cases in contacting owners may inliibit users from including
material in their systems. Or users may be unable to employ material
in their systems in sufficient time in situations where speed is essen-
tial. It would appear in the public interest for the bill to contain some
guarantee that information systems which are willing to pay royalties
for material used can obtain easier access to copyrighted information,
at least in high-priority areas such as scientific and technological
works.
The proposed legislation also leaves unclear at what point in the
use of computerized copyrighted material the liability for royalty
payment attaches. Under H.R. 2223, it would seem that placing copy-
righted data into a computer (which may form part of an information
system) might infringe the copyright. Since the use of computers for
storage and retrieval of information to some extent may replace the
sale of books, in most cases the payment of royalties should be re-
quired. However, just where in the process the royalty payment should
be assessed, is open to question. We believe it unwise to levy a "toll"
at the "input" stage in the process. Levying on the "input" into com-
puters could impede the development of information systems and may
render meaningless any exemption for the use of computerized in-
formation for educational purposes which may be read into H.R. 2223.
The subject of the application of copyright to commimity antenna
television has presented considerable difficulty in previous drafts of
proposed revisions of the Copyright Code. H.R. 2223 attempts a com-
promise between the extreme positions of complete liability for in-
fringement of copyright by secondary transmission by CATV on one
hand, and almost complete freedom from liability on the other hand.
While we support the imposition of a degree of liability upon CATV,
we believe that H.R. 2223 should provide an area of free use for such
systems within tlie local service area.
The first part of subsection (c) of section 111 provides for compul-
sory licensing of secondarj'^ transmissions of a primary transmission
by an FCC-licensed broadcast station upon compliance witli the notice
of ownership and the payment provisions of subsection (d), and (A)
the signals of the primary transmission are exclusively aural and the
secondary transmission is permissible under the rules, regulations, or
authorizations of the FCC; (B) where the CxlTV system is, in whole
or in part, within the local service area of the primary transmitter ; or
(C) where carriage of the signals comprising the secondary transmis-
sion is permissible under the FCC rules, regulations, or authoriza-
tions. We strongly urge, with respect to (B), that the secondai-y
133
transmittal should be completely free of liability ; hence, royalty-free
or no licensing would be in order. The secondary transmission in such
a situation, where the CATV system is, in whole, or in part, within the
local service area of the primary transmitter, finds the cable system
only filling gaps or improving reception in the service area of the
primary transmitter, supplementing the primary transmission. Such
transmission does not impair the primary transmitter's market; in
fact, it enhances it. The copyright holder is helped and not hurt by such
activity.
Section 203 and section 304(c) (6) (D) concern the termination of
transfei*s and licenses. These sections would permit the author or his
heirs to terminate the original transfer of his rights at any time
during a period of 5 years beginning at the end of a specified time.
However, section 203(b) (4) and parallel section 304(0) (6) (D), relat-
ing to transfers of copyrights subsisting after January 1, 1977,
provide that an agreement to transfer rights subsequent to the termina-
tion of a prior transfer will not be valid vmless made after the effective
date of that termination or miless made to the original grantee or his
successor in title.
We do not believe that the grantee or his successor should be in a
preferred position to enter into an agreement for transfer prior to
termination of the original transfer. We see no reason why all poten-
tial transferees should not have an equal opportunity to enter into
such an agreement. It is therefore suggested that subparagraph (4) of
section 203(b) and subparagraph (D) of section 304(c) (6) be deleted.
Section 302 substantially lengthens the time of copyright protec-
tion Avhen compared with the duration of copyright in works under
the present copyright law. At the present time, protection is granted
for 28 years from the date of publication and may be renewed for a
second 28 years, making a total potential term of 56 years in all cases.
U.S. patents for any new and useful process, machine, manufacture or
composition of matter or improvement thereof, are granted for a term
of 17 years (35 U.S-C. 154). Patents for new, original, and ornamental
designs of articles of manufacture are granted for a period up to
14 years (35U.S.C. 173).
Patents for plants are granted for the same length of term as for
new and useful processes, machines, manufacture or composition of
matter (35 U.S.C, 161). Under the proposed bill, an author would
receive a copyright for his life and 50 years after his death. Consider-
ing the average life expectancy of people today, this will double the
length of copyright when compared with the present one for many
works.
For anonymous works, pseudonymous works, and works made for
hire, the term is somewhat less, but still significantly greater than
provided by the present statute.
Senate report No. 93-983, pages 167-173, discusses various con-
siderations for the duration of copyright in works. A major argument
for increasing the term of copyright appears to be that the extension
conforms with foreign laws which provide for longer terms of copy-
right than the present U.S. law. This argument is presented in the
Senate today.
However, we do not believe that this should be the criterion for the
proper length of copyright protection in the United States.
134
Under the Constitution, article 1, section 8, the purpose of a copy-
right is to promote the progress of science and useful arts by securing,
for limited times, to authors and inventors the exclusive riglit to their
respective writings and discoveries .While it may be urged that a copy-
right term of 28 years plus an additional 28 years might be insufficient
to protect the interests of an author in his writings in view of the
lengthening of the ordinary lifespan in modern times, the proposed
bill, by its extended duration of the copyright term, appears to carry
the protection far beyond the contemplation of the framers of the
Constitution.
As an alternative, we propose to proxdde for the lengthening of the
term of the copyright duration to be at least coextensive with the life-
time of the author. In this way, the author will be insured protection
of his work for at least as long as he may live. Thus, we propose the
substitution of an alternative provision to section 302(a), as follows:
(a) In general, copyright in a work created on or after January 1,
1977, subsists from its creation, and except as provided by the follow-
ing subsections, endures for a term consisting of 56 yeare or the life
of the author, whichever is greater.
A conforming amendment should also be made in section 302(b).
The provisions of section 302(c) should be modified to limit the dura-
tion of anonymous works, pseudonymous works, and works made for
hire, to a period of 56 years from the year of their creation or first
publication.
Our proposal would carry out the constitutional concept of
promoting the progress of science and useful arts. A 56-year copy-
right term, as may be extended by the lifetime of the author, is
believed more than adequate to promote this constitutional purpose.
It has also been urged that growth in communications m.edia has
lengthened the commercial life of many works. This does not justify
lengthening the term of a copyright beyond 56 vears or the lifetime
of the author because a lengthened commercial life is not necessarily
consistent with the basic constitutional purpose.
The basic question with respect to copyright duration to be an-
swered by the Congress is whether a doubling of the present copvriglit
term for many works is desirable to promote the progress of science
and useful arts. Other forms of Federal protection for creative works,
such as patents for useful devices, plants, and designs, are all for pe-
riods of no more than 17 years. Copyrights in writings are already in a
preferred position. We do not believe that the promotion of the prog-
ress of science and useful arts requires a doubling of the possible 56-
year copyright period. Our alternative proposal would accommodate
such valid concerns as may exist regarding the present law and, at
the same time, carry out constitutional goals.
Section 405 deals with the effect of omission of the copyright notice.
Under the present act, omission of notice on published copies of a
work ordinarily^ places the work in the public domain (17 U.S.C.
§ 21) . However, if such notice is accidentally omitted from a particular
copy or copies, copyright is not lost; but innocent infrinirei-s who are
misled by the accidental omission are not liable for infringement.
Under section 405 of the bill, omission of notice from "a relatively
smallnumber" of copies or phonorecords publicly distributed will not
invalidate the copyright whether or not such omission was accidental.
135
IVIoreover, the omission of notice will not invalidate the copyright
in a work if registration for the work is made within 5 years after
the publication without notice and a reasonable effort is made to add
notice to all copies or phonorecords distributed to the public in the
United States after the omission is discovered.
As under the present law, innocent infringers who are misled by
the omission of notice woidd not be liable in actual or statutory dam-
ages for infringement. But under H.R. 2223, they might have to sur-
render profits gained through the infringement and be subject to
injunction or payment of a reasonable license fee for continuing their
activity (section 405 (b)). These provisions would delete from 17
U.S.C. § 21 the provision that no permanent injunction shall be had
unless the proprietor of the copyright shall reimburse the innocent
infringer his reasonable outlay innocently incurred if the court, in
its discretion, shall so direct.
A copyright should be protected from invalidation only when the
failure to provide notice was tlie result of an accident or mistake or in
violation of the copyright owner's written requirement that, as a
condition of authorization of public distribution, the copies or phono-
records bear the prescribed notice, and distribution of only a small
number of such items has been made to the public. To permit, as
proposed in section 405, a copyright owner to issue an entire publication
of his work without notice and yet enforce the copyright tends to negate
tlie purpose of notice. Although iniiocent infringers would incur no
liability, they would still have to establish their innocence even where
the omission was deliberate in many cases. We suggest that the sec-
tion specifically be limited to the eliect of omission of the copyright
notice by accident or mistake.
We also believe it advisable that the words "particular copy or
copies," contained in the present statute, be used instead of the broader
and more general words "a relatively small number," found in section
405, to designate the limits within which notice may be omitted with-
out loss of copyright. And we think the discretion in the court to
order reimbursement to the innocent infringer should be retained.
Subject to specified exceptions, section 601 provides that the impor-
tation into or public distribution in the United States of more than
2,000 copies of a work consisting preponderantly of nondramatic
literary material in English by an American or i-esident alien author
and protected under the Copyright Code is prohibited, unless the por-
tions consisting of such material have been manufactured in the
United States or Canada.
This section would reenact in modified form a previous, highly pro-
tectionist nontariff trade barrier (17 U.S.C. §§ 16, 197). We do not be-
lieve that there is either a necessity or desirability for such a provision
which creates an absolute bar to certain books published abroad.
Section 601 is entirelv uni-elated to questions of copvright. It does
not protect authors at all. On the contrary, section 601 decreases the
value of copvrights hy preventing an American author from grant-
ing worldwide publication rights to an English publisher who offei's
more favorable compensation than an American publisher. WhAtever
the merits of the original "infant industry" justificaton for the manu-
facturing clause, the restriction is clearlv unnecessary and inappropri-
ate today in light of the strength and success of our industry and in
136
light of our Nation's coinniitment to eliminate nontariff barriers to
international trade and insure vigorous competition.
For these reasons, section 601 should be stricken from the bill, and
the manufacturing clause should be elmiinated from our copyright
law.
With respect to the Department's antipiracy program in the sound
recording field, we note the following as areas where amendments are
desirable :
Section 506 should be amended to provide for forfeiture of infring-
ing articles in criminal cases resulting in convictions, and a new sec-
tion should be added to provide for summary and judicial forfeitures
in criminal cases.
At present, the Government has no clear-cut authority to destroy
infringing articles which have been seized or otherwise obtained in
the investigation or prosecution of a tape piracy case or, for that mat-
ter, any criminal copyright infringement case. This lack of specific
authority has resulted in critical storage problems for many FBI
and U.S. marshals' offices throughout the country and poses the em-
barrassing possibility that the Government may be ordered to return
known infringing articles tt) a convicted defendant.
With proper amendments, H.R. 2223 could eliminate this most seri-
ous problem. ^Ye strongly urge the following revisions :
1. There should be abided to section 506 a new subsection which
should be designated as :
(b) When any person is convicted of any violation of subsection (a), the court
in its judgment of conviction shall, in addition to the penalty therein prescribed,
order the forfeiture and destruction or other disposition of all infringing copies
or phonorecords and all implements, devices, equipment or other articles of what-
ever kind used or intended to be used in the manufacture, use, or sale of such
infringing copies or phonorecords.
Present subsections (b), (c), and (d) need to be redesignated as
subsections (c), (d),and (e), respectively.
A conforming amendment should be made to title 18, United States
Code, section 2318, so that it reads as follows :
2318.
(a) (present section 2318)
(b) When any person is convicted of any violation of subsection (a) ,
the court in its judgment of conviction shall, in addition to the penalty
therein prescribed, order the forfeiture and destruction or other dis-
position of all counterfeit labels and all articles to which counterfeit
labels have been affixed or which were intended to have had such labels
affixed.
(c) Except to the extent they are inconsistent with the provisions of
this title, all provisions of section (new forfeiture section decribed be-
low), title 17, United States Code, are applicable to violations of sub-
section (a).
2. A new section should be added reading as follows :
(a) All copies or phonorecords manufactured, reproduced, distrib-
uted, sold, or otherwise used, intended for use, or possessed with in-
tent to use in violation of section 506(a), and all plates, molds, mat-
rices, masters, tapes, film negatives, or other articles by means of wliich
such copies or phonorecords may be reproduced, and all electronic, me-
chanical, or other devices for manufacturing, reproducing, assemblings
137
using, transporting, distributing, or selling such copies or phono-
records may be seized and forfeited to the United States.
(b) All provisions of law relating to (1) the seizure, summary and
judicial forfeiture, and condemnation of vessels, vehicles, merchandise,
and baggage for violations of the customs laws contained in title 19,
United States Code, (2) the disposition of such vessels, vehicles,
merchandise, and baggage or the proceeds from the sale thereof, (3)
the remission or mitigation of such forfeiture, (4) the compromise of
claims, and (5) the award of compensation to informers in respect
of such forfeitures, shall apply to seizures and forfeitures incurred,
or alleged to have been incurred, under the provisions of this section,
insofar as applicable and not inconsistent with the provisions of this
section; except that such duties as are imposed upon the collector of
customs or any other person with respect to the seizure and forfeiture
of vessels, vehicles, merchandise, and baggage under the provisions
of the customs laws contained in title 19 of the United States Code
shall be performed with respect to seizure and forfeiture of all articles
described in subsection (a) by such officers, agents, or other persons as
may be authorized or designated for that purpose by the Attorney
General.
Proposed section 114 should be amended to provide for the copy-
right owner of a sound recording to have the right to make derivative
works or it should be amended to clarify that persons other than the
copyright owner do not have such a right absent consent of the copy-
right owner, notwithstanding the fact that the sound recording
copyright owner would have no such right.
Section 114 limits the specific rights of a sound recording copyright
owner to those granted to copyright owners by parts (1) and (3) of
section 106. That is, sound recording copyright owners have the right :
( 1 ) To reproduce the copyrighted work in copies or phonorecords ;
and
(3) To distribute copies, et cetera.
The right to prepare derivative works based on the copyrighted
work (part (2) of section 106) is withheld from a soimd recording
copyright owner despite section 103 which states that such works are
copyrightable and despite the fact that sound recording copyright
owners are entitled to make and copyright derivative works under
present law, 17 U.S.C. § 7. There is a real possibility that an unauthor-
ized duplicator who made a "derivative" work by slightly altering
the original copyrighted sound recording would claim that he did so
legally since the copyright owner is given no exclusive right to make
derivative works.
This potential legal problem could be eliminated by including part
(2) of section 106 in the list in section 114 of exclusive rights granted
to a sound recording copyright owner — an action which would grant
to sound recording copyright owners no more rights than they
presently possess.
Section 506 should be amended accordingly to include part (2) of
section 106.
A third area for concern is proposed section 301 (pages 32-33),
subparagraph (b) , which states :
Nothing in this title annuls or limits any rights or remedies under
the common law or statutes of any State with respect to :
57-786— 76— pt. 1 10
138
(3) Activities violating rights that are not equivalent to any of the
exclusive rights within the general scope of copyright * * * includ-
ing breaches of contract, breaches of trust, invasion of privacy, defa-
mation, and deceptive trade practices * * *
We believe this langTiage could be read as abrogating the antipiracy
laws now existing in 29 States relating to pre-February 15, 1972,
sound recordings on the grounds that these statutes proscribe activities
violating rights "equivalent to * * * the exclusive rights within the
general scope of copyright * * *." .
Certainly such a result cannot have been intended for it would
likely affect the immediate resurgence of piracy of pre-February 15,
1972, sound recordings. [Note : In any event, there would be no effect
on sound recordings produced after February 15, 1972, since it would
appear that the States cannot constitutionally enforce their antipiracy
laws against the unauthorized duplication of these later recordings.]
We therefore urge that section 301 (b) be amended to include a new
subsection (4) as follows:
(4) Sound recordings fixed prior to February 15. 1972.
Proposed section 506(a) should be amended to correct the disparity
of sanctions between second-time infringers of sound recording and
motion picture copyrights and second-time infringers of other
copyrights. ^
As written, section 506(a) provides for a maximum $10,000 fine and
3 years imprisonment for second-time infringers of all copyrights but
sound recording and motion picture copyrights. Infringers of these
latter two categories are subject, upon conviction of a seco]id offense,
to a maximum fine of $50,000 and 2 years imprisonment. We suggest
that these latter infringements are sufficiently serious to warrant at
least the same maximum imprisonment for second offenders as is ap-
plicable to second-time infringers of other copyrights, as well as the
larger fine. The term of imprisonment prescribed should therefore be
at least 3 years.
We siTpport the substitution of "for purposes of commercial advan-
tage or private financial gain" for the present recjuirement in 17
U.S.C. 104 that, to be criminal, infringements must be done "for
profit." The provision in present section 104 for aiders and abettors
kas been removed, but these individuals will be liable to prosecution
under 18 U.S.C. 2.
From the standpoint of making deterrents meaningful beyond the
financial deterrent and provide a penalty for those who can "take"
financial losses as a cost of business, it is recommended that a maxi-
mum 1-year term of imprisonment be included in the sanctions under
proposed sections 116(d) and 506(b), (c), and (d), all of which
are provisions the Department supports.
We also note that section 115, subparagraph (a) (1) , states explicitly
and with clarity what four courts of appeals have ruled is the scope
of compulsory licensing under present law, namely, that absent au-
thorization by the owner of a composition copyright, the duplication of
a sound recording embodying a copyrighted musical composition is an
infringement of the composition copyright even though the duplicator
tenders royalty payments and otherwise attempts to comply with
present compulsory licensing provisions. This is contained in the final
sentence of subparagraph (a)(1), which reads :
139
A person may not obtain a compulsory license for nse of the (non-
dramatic musical) work in the duplication of a sound recording made
by another.
Since this prohibition is not limited to copyrighted sound recordings,
the etlect is to prevent the operation of the compulsory license mecha-
nism for making copies of any sound recordings embodying copy-
righted musical compositions. The Department wholeheartedly
supports this provision.
Section 804 deals with procedures before the tribunal which deter-
mine adjustment of copyright royalties and their distribution under
specifiecl sections of the bill. We object to the provision in subsection
(e) of this section that the Senate Committee on the Judiciary and
the House of Representatives Committee on the Judiciary may waive a
requirement tliat a final decision in each proceeding be rendered by
the tribunal within 1 year from the certification of the panel by the
Register of Copyrights.
The constitutional division of duties among the three principal
branches of the Governm.ent places in the Congress the legislative re-
sponsibilities. However, once a law has been enacted, it is for the execu-
tive branch to carry out the intents and purposes of the law as directed
by the Congress. In our view, legislation, once enacted, should not be
modified or waived by actions of a committee of the Congress. It is
suggested that if waiver of the 1-year requirement is desirable under
particular circumstances, these circumstances be generally outlined in
the bill and that the tribunal be given authority upon good cause
shown to extend the period of time for rendering decisions.
Of particular concern to this Department is the new form of copy-
right protection provided by title II of the bill.
This new form of protection is a hybrid between design patents, 35
U.S.C. 171-173, issued for a period of up to 14 years by the Patent
Office for new, original and ornamental designs of articles of manu-
facture and the copj-right laws which provide for registration and
issuance of certificates of copyrights for the writings of authors. The
new protection that is provided under the bill is not presently avail-
able under the copyright laws and can only be obtained through a de-
sign patent after an examination procedure which determines whether
the ornamental design meets the criteria of patentability, including
unobviousness in view of the prior art, as provided by 35 U.S.C. 102,
103.
While the protection period as proposed for the new type of orna-
mental design protection is only a maximum of 10 years as compared
with the maximum of 14 years available for a design patent, it is
granted without the need of meeting the novelty and unobviousness
requirements of the patent statute.
A threshold consideration before finding that the needs are such
that this new type of protection should be available is whether the
benefits to the public of such protection outweigh the burdens. We
believe that insufficient need has been shown to date to justify removing
from the public domain and possible use by others of the rioflits and
lienefits proposed under the present bill for such ornamental designs.
We beliove that design patents, as are granted today, are as far as
the public should .q-o to grant exclusive rights for ornamental designs
of useful articles in the absence of an adequate showing that the new
140
protection will provide substantial benefits to the general public
which outweigh removing such designs from free public use.
While it has been said that the examination procedure in the Patent
Office results in serious delays in the issuance of a design patent so as to
be a significant problem and damaging to "inventors'' of ornamental
designs of useful articles, the desirable free use of designs which do not
rise to patentable invention of ornamental designs of useful articles
are believed to be paramount.
If the contribution made to the public by the creation of an orna-
mental design of a useful article is insufficient to rise to patentable
novelty, the design should not be protected by the law. The Depart-
ment of Justice has consistently opposed legislation of this character.
To omit Federal statutory protection for the form of a useful object
is not to deny the originator of that form any remedy whatsoever. If
he can prove that competitors are passing off their goods as the
originator's by copying the product's design, he may bring an unfair
competition action against such copyists. Crescent Tool Go. v. KWborn
& Bishop Co., 247 Fed. 299 (C. A. 2 1917). See, also. Sears, Roehuch
(£' Go. V. Stiff el Co., 376 U.S. 225 (1964), and Gompco Corp. v. Day-
Brite Lighting, Inc., 376 U.S. 234 ( 1964) .
Quite apart from our opposition to the merits of title II, we also
oppose enactment of the design protection provisions of this bill which
would provide a new class of actions against the United States since the
bill proposes to amend section 1498(a) to add the new type of design
copyrights to the remedies available to inventors against the United
States who have been issued U.S. patents when they are used by the
United States without authorization of the owner.
For example, by amending section 1498 (a) in this waj^, the Congress
will be creating a completely new problem area fraught with difficulties
for Government procurement.
Government contractors who "reverse engineer" alleged trade secrets
in bidding competitively for Government contracts would now b&
faced with the necessity of designing around the "packaging looks" of
a product covered by a design copyright which may not rise to the
stature of patentable novelty under the patent laws. Thus, the "non-
utilitarian looks" of a vehicle which may not be protectable as a design
patent would be given copyright-type protection under the bill.
We, therefore, strongly oppose the new type of protection proposed
by title II of the bill.
Section 1498(a) is also amended to provide for the first time for
suits against the United States for unauthorized use of inventions,,
whether patented or unpatented.
Thus, it would appear to permit a suit based on a trade secret con-
taining an unpatented invention. This also, we strongly oppose as
inconsistent with limiting claims against the United States in 28
U.S.C. 1498 to those recognized by the patent and copyright laNvs. No
adequate showing has been made that this type of protection, on
balance, is in the public interest.
The provision in section 220 whereby simultaneous suit can be filed
against the Administrator who carries out the provisions of title II,
section 230, and an alleged infringer of the design in that it subjects
an alleged infringer to suit in the same action even though the thresh-
old question whether a certificate can issue under the provisions of
141
the law lias not been decided as between the Administrator and the
applicant for registration is believed undesirable. While it is not
likely that the issuance of certificates of registration will be frequently-
refused if certain basic requisites of applications are met, neverthe-
less, if a situation should arise of a refusal of issuance of a certif-
icate of registration by an Administrator, this should require a
separate and distinctive action to secure issuance thereof, especially
since governmental functions should not normally be mixed with
the proprietary enforcement functions of courts in adjudicating pri-
vate rights and remedies.
Certain technical corrections appear indicated in title II as follows :
Page 66, lines 22 and 23 appear reversed.
Page 73, line 22, "Section 311" should read "Section 211."
Page 73, line 26, "mortgage" should read "mortgagee."
Mr. Kastenmeiek. Thank you. I had difficulty understanding this.
What you are referring to by using the term fair use is a proposal
that we remove the uncertainty in connection with the present lan-
guage in the bill; your suggestion does not substantively change the
construction of the bill, bu^ is more or less a clarification of it, in an
attempt to remove the uncertainty ?
Mr. GoLDBLOOM. I believe that is right.
Mr. Kastenmeier. With respect to the term, of course, you clearly
opposed the term proposed in the legislation. Why did the Department
of Justice propose to change the term of 50 years to 56 or life ? In other
words, you perceive that there was an inequity on the part of authors
who might seek terms for life or some other terms other than what is
present in the law ?
ISlr. GoLDBLOOM. To the extent that it may be urged that the present
term does not fully protect an author who may live a long life and
lias created a copyrighter's work in his early years. We believe that in
constitutional concept, furnishing this protection to authors for their
creations, that the present law may very well not be sufficient to pro-
tect that interest. We feel, however, that the bill as drafted goes far
beyond the requirement or the need to protect authors or their crea-
tions. For that reason we would lengthen the 56-year term to the ex-
tent that it may last during the duration of the lifetime of the par-
ticular author,
Mr. Kastenmeier. Had you wondered or determined why the rest of
the world had gone to a life plus 50 at some point during the codifica-
tion of their copyright laws ?
Mr. GoLDBLOOM. We laiow they have gone that way. They have, we
believe, different considerations that they pursue in furnishing this
type of protection.
Mr. Kastenmeier. How would theirs be different from our own ? It is
a very important point.
Mr. GoLDBLOOM. Well, we think that our own considerations flow
from constitutional provisions of the concept of thereby protecting
authors and to promote and advance science and useful arts for a
limited time under the concept as expressed in the constitution.
In our view a term which extends for 56 years or the lifetime of the
autlior, whichever is greater, would serve those constitutional goals
of a limited time, which is a very clear constitutional concept. Cer-
tainly, 150 years in our view is an extended period of time considerably
above the authority granted.
142
Mr. Kastenmeier. Do you have any jurisdiction or a single authority
that says the contemplation of the franiers of the Constitution is con-
trary to what the bill proposes ?
Mr, GoLDBLOOM. It is only our reading of the Constitution.
Mr. IvASTEXMEiER. Would you answer the question of whether you
found or looked for an authority ?
Mr. Goi.DKLooM. We have looked, but haven't foimd any.
Mr. Kastenmeier. It's all on the other side ?
]\Ir. G0LDBL003I. I don't know that it's there either.
Mr. Kastenmeier. We have concluded that the State Department
and most nations of the Earth are out of tmie with the contempla-
tion of the Founding Fathers?
Mr, GoEDBLooir. I don't believe that most nations of the world are
enacting legislation on the basis of the Constitution of the United
States,
Mr. Kastenmeier. In describing the effect of the term, I think you
said it has the effect of doubling the present term, the present term
being 50 years. It would make it 112 if you subtract the 50. It means
that you are suggesting that after creation, the average author lives
62 years ; is that correct ?
]\Ir. GoLDBLOO]\r, I don't believe we intended to be precise in mathe-
matics ; it was an appi-oximate figiire that we were trying to get.
Mr. Kastenmeier. To me it doesn't even seem approximate. I don't
mean to nitpick, but I think the effect is somewhat overdescribed in
saying that it doubled the term. Perhaps it might increase it by a
probable figure of 50 percent but it scarcely doubles it.
I think you are entitled to take whate\'er point of view the Depart-
ment desires to in that connection and I would say that the burden is
on those proposing to change, to justify the change. I think that is the
case and to that extent you are probably not to be criticized.
In title II, which covers ornamental design, is it your point of view
that what is doiie is appropriate or is it your point of view that
nothing should be done with respect to that which is proposed to be
covered in title II ?
Mr. Goldbloom. It is our point of view that nothing should be done.
Mr. Kastenmeier. I'm going to yield to the gentleman from New
York, Mr, Pattison. I caught you bv surprise that time, didn't I?
Mr. Pattison. You surely did. I am interested also in his opinion
on the term and I also respect your opinion that it should be some-
thing other than life plus 50, but I do wonder if you are serious about
that, being that we are somehow constitutionally constrained for some
period of time ?
It is limited as opposed to unlimited. Certainly, it could be life plus
50 or 1.000. Constitutionally, couldn't we do anything we want?
Mr. Goldbloom. Sure. My statement is not to say that there is any
limitation but the provision is to promote and advance science and the
useful arts and for the protection of authors.
Mr. Paitison. You can protect them. We generally operate with
notions against having rights fixed in perpetuity. Property rights cer-
tainly are not fixed that way. In other words, after our death we can
enjoy still those rights in essence.
Mr. Goldbloom. There are limitations on that generally in the law
but we have here other considerations. Those considerations are, as
I say, the promotion of science and the useful arts and the protection
143
of authors. If we focus on these, we find in the Constitution a sense of
not having it for a very extensive term.
Mr. Pattisox. But, is there not any kind of definitional problem ;
you don't think it defines anything else than what is proposed in this
bill?
Mr. GOLDBLOOM. No.
[Mr. Pattison. I'm interested in the fair-use provision that you have
remarked on. It seems to me you are proposing as to nonprofit institu-
tions that there be limited use of reproduction. In other words, schools,
libra^ries, and things like that can reproduce without any considera-
tion; If you want 50 copies for your class, then without having to buy
50 copies of the journal, you can go ahead and reproduce it and that is
OK?
Mr. GoLDBLOOM. Yes.
Mr. PArnsoN. And that is related to nonprofit organizations?
Mr. GoLDBLOOM. Yes, educational activities.
Mr. Pattison. AYlien I think in terms of the fact that many things
are written for that market, how do you respond to that; in other
words, if something is designed to be used in an educational institu-
tion which is normally nonprofit, how do you protect that author?
Mr. GoLDBLOOM. This is not designed to make unlimited reproduc-
tions of copyrighted material, but it is designed to expand and
broaden.
Mr. Pattison. Doesn't it make it unlimited when it is used in non-
profit institutions ?
Suppose I am writing a school book and they are the only people
that are going to use it. I am not going to sell my book in the local
drugstore. The book I am writing is for the use of schools which are
almost always theoretically nonprofit. How do I protect that author?
Isn't it true that under your remarks you would eliminate that pro-
tection ?
Mr. GoLDBLOOM. Well, we think it could be protected perhaps by
contractual rights between the publisher and the user. It is not our
purpose to support unlimited copying of textl^ooks.
]\fr. Pattison. But, I think your remarks would do that; I think
your suggestion would actually do that, wouldn't it? You exempt the-
fair-use provisions for educational use by nonprofit institutions.
Therefore, if somebody reproduces a textbook and distributes it to
their class, even 1,000 copies, that would not be prohibited under the
act as changed by your suggestion ?
Mr. GoLDBLOOM. I do not believe that we would want this construed
to allow unlimited reproduction of textbooks where textbooks are
written for purposes of education.
Mr. Pattison. On the area of CATV, I take it your suggestion as
to the CATV system within the normal grade B or normal viewing
area where the signal reaches users, th.at the system would not have
to pay anybody for that. As for importation of signals fi'om outside
that contour you would approve of them paying something?
Mr. GoLDBLOOM. Yes. It is only where there is reproduction of the
signal within the local service area.
Mr. Pattison. They then would not have to pay for that.
Mr. GoLDBLOOM. Yes, the importation into that area or exportation
outside of that area would have to be compensated for.
144
Mr. PATTisoisr. Thank you.
Mr, lO.STENMEiER. The gentleman from New York, Mr. Badillo.
Mr. Badillo. No questions.
Mr. IvASTENMEiER. The gentleman from Massachusetts.
Mr. Drinan. Thank you, Mr. Chairman.
May I ask you, sir, by what process does the Department of Justice
come to these conclusions and, who is the "we" you keep referring to ?
Mr. GoLDBLOOM. In our statement, broadly, we consulted various
segments of the Department's divisions that have interests concerning
this bill.
Mr. Drinan. From what premise did you operate ; why are you m-
f erring something that is all within a legislative judgment? Is it your
premise that the first amendment of the Constitution will provide
that protection, or what ?
Mr. GoLDBLOOM. We have different divisions within the Department
that have an interest in this. The Antitrust Division has broad in-
terests in the administration of the antitrust laws. The Criminal Divi-
sion has an interest in the bill to the extent that there are criminal
provisions.
Mr. Drinax. An interest; what do you mean by that? From what
premise do you operate; why are you here? In other words, do you
want a law that is easy to execute or what is your major premise?
Mr. GoLDBLOOM. The Antitrust Division administers the antitrust
laws and, to the extent they feel that the provisions in the copyright
law have an effect upon their broad interest in the economy of our
country, they have set forth their interests in this.
Mr. JDrixan. Did you testify in the Senate ?
Mr. GoLDBLOOM. I personally did not testify.
Mr. Drinan. On page 24 of your statement, I have been very inter-
ested in the fact that you mentioned here that :
At present, the government has no clear-cut authority to destroy infringing
articles which have been seized or otherwise obtained in the investigation or
prosecution of a tape piracy case or, for that matter, any criminal copyright
infringement case. This lack of specific authority has resulted in critical storage
problems for many FBI and U.S. Marshal's oflSces throughout the country and
poses the embarrassing possibility that the government may be ordered to
return known infringing articles to a convicted defendant.
Do you have the power to seize them ?
Mr. Mtjrphy. We have the power to seize them as evidence for ^do-
lations of the law pursuant to a warrant, either pursuant to a warrant
of arrest or to a search warrant. The problem arises when we seize
substantial quantities of these things that are possessed with the in-
tent to violate the law, and what to do with them. There is no clear-
cut authority, and we stress the clear cut because there is provision
m the copyright law for the destruction of materials that are infringe-
ment oriented.
Frankly, of course, until the enactment of Public Law 92-140, the
privilege of seeking the destruction of those materials alluded only
to the copyright owner. We think by the enactment of Public Law 92-
140 the Federal Government has been vested with the authority for for-
feiture and destruction of such infringing materials. But, in order to
make it absolutely clear that that right exists in the Federal Govern-
ment, we propose this forfeiture provision.
;145
Mr. Drixan. You suggest on page 24 that the FBI and U.S. mar-
shal's office are posed with the embarrassing possibility that the Gov-
ernment may be ordered to return known infringing articles to a con-
victed defendant. Tell me more about that; can anyone sue?
Mr. MuRrHY. Yes, sir, some have sought orders from the court.
Mr. Drinan. Why would that be embarrassing if you are just doing
what the law gives you authority to do ?
Mr. Murphy. We don't say it is embarrassing to do what the law
provides for, but that there are erroneous judgments on the part of
courts that have resulted in the return of materials to the violator.
Mr. Drinan. But you want the authority over all of the equipment
to be able to destroy it and never return it and not give any compensa-
tion for it when some of that could be used
Mr. JNIuRPHY. May I point out that the copyright owner has that
authority right now, to seize the infringing materials.
]VIr. Drinan. That is an entirely different question.
Mr. Murphy. Well, it is similar, it seems to me. These are mate-
rials that are used and possessed with the intent to violate the law.
Mr. Drinan. Once again you are telling me, you are stating that
the Government is continuing to possess these things when the owners
may well come under the law, have the right to take possession of the
infringing articles.
Is there anything here, sir, any policy position you take on the
question of performance royalties ?
As you know, the Senate is deeply divided on this. Is there anything
in your statement as to any position that the Department of Justice
takes on that?
Mr. GOLDBLOOM. No.
Mr. Drinan. You have taken a position on other questions here.
How come you missed this very fundamental one that this committee
has to decide ?
Mr. GoLDBLOOM. We attempted to limit our position to those areas
of interest that the Department of Justice administers or represents,
insofar as it represents other Federal agencies and departments.
Mr. Drinan. I yield back.
Mr. Kastenmeier. The gentleman from California, Mr. Danielson.
Mr. Danielson. Could you tell me, sir, what is the nature of the
property rights in copyrighting, in this context. Is my copyright and
my property right subject to execution and sale under a valid judg-
ment of a court ?
Mr. GoLDBLOOM. I believe it is.
Mr. Danielson. Could it be pledged as security and subsequently
my security interest be foreclosed ?
Mr. GoLDBiiOOM. I believe it could be.
Mr. Danielson. In other words, it could be taken from me by law ?
Mr. GoLDBLOOM. Yes ; depending on the State law.
Mr. Danielson. Under section 104(c) the State Department repre-
sentative pointed out that it favored section 104(c) which would tend
to prohibit the enforcement of the valid judgment of a foreign court
as to the copyright of one of its nationals within the United States ;
are you willing to comment on that ?
Mr. GoLDBLOOM. I would prefer, if I might, to supplement the record
on that. We have not had an opportunity before today to see the State
146
Department's position on that and the Department of State may very
well have a position on that.
Mr. Danielson. I only make a request. I don't know some of the
answers, but I am seeking them and any help that you could provide
I would appreciate. I personally have a problem; 1 don't see how we
•can hang on to our comity with other nations if we refuse to recognize
the judgment of their courts whether we agree or not. That poses a
problem for me and I would appreciate any information you can get
for me.
Mr. GoLDBLOOM. I will try.
Mr. Danielson. On the subject of cable television, you stated on
page 16 that you feel that secondary transmission should be com-
pletely royalty free and free of liability so long as it is within the local
service actually, because they are just filling in blind spots and miprov-
ing transmission?
Mr. GoLDBLOOM. Yes.
Mr. Danielson. And then you conclude that such transmission does
not impair the primary transmitter's market and, in talking about
the broadcasting stations, in fact you say it enhances it and I concur.
Then you say the copyright holder is helped and not hurt by such
activity. What is the rationale for that '^
ISIr. GoLDBLooM. To the extent that there might be an agreement
between a copyright holder and the broadcaster concerning the use
■of the material, that the ability to enhance the viewing and the num-
bers of viewers within the local service area, would seem to be some
consideration between the parties. If it is demonstrable, more people
would have access to this.
Mr. Danielson. Are you saying in effect that when a copyright
owner enters into a royalty agreement with a broadcaster, usually a
TV broadcaster, that the amount of royalty which is paid is based
at least in part upon the number of viewers which the station can
demonstrate watch the program at time 7 p.m., for example?
Mr. GoLDBLOOM. It may be something other than royalties for the
copyright; it may just be advertising ability, the possibility of adver-
tising a copyrighted work.
Mr. Danielson. It is something of value to the copyright owner
whether it is money or prestige or whatever, his sense of value is
entirely subjective. I understand that, but the point is that the com-
pensation in my money or money's worth to the copyright owner is
based in part on the numbers of viewers?
]VTr. GoLDBLOOM. That is correct.
Mr. Danielson. That is my understanding. All right, for that rea-
son T will once ajrain state your conclusion in the last sentence of para-
graph 1 on pap-e 17 of your statement, "the copj'^right holder is helped
anrl not hurt bv such activity."
"WHiat thp- copvrio;ht owner <Tets at this consideration is greater or
less depending upon the rated viewing of the program at the time
of the nublication?
l^^r. GoLDBLOo:\r. Tos.
Mr. Danielson. We are talking about a secondary transmission
"vrithin the primarv viewing area. Let us take for an example southern
rnli^ornia which has our laro-est metronolitan area, Los Angeles. That
area is a hasin surrounded by a wall of mountains. It is a lovely area,
147
.'but you cannot get a primary transmission from Los Angeles because
of the mountains. Suppose I have a cable system and I pick up the
Los Angeles broadcast and take it by cable into the valley and the
desert and distribute it. I'm going to call that, for our purposes a
primary transmission to dispose of the secondary transmission you
are talking about. Do you feel there should be an additional fee there ?
Mr. GoLDBLooM. Yes.
Mr. Danielson. Why?
Mr. GoLDBLOOM. Of course, the whole subject of these copyright
laws has been debated long and hard to the extent that the Congress
has attempted through this bill to accommodate those various inter-
ests. We feel that it has accomplished Ijeneficially a great deal because
there are competing interests here. Cable television does have the
ability to extend beyond the m.ountainous area that you described,
something which other systems are not naturally or not normally
able to do.
JNIr. Danielsgn-. Is there anything natural or normal about the
primary transmission: it is a mechanical device, an electronic device,
-a creation of man which has been out in these areas. Seriously, your
rationale to support your statement that the copyright holder is helped
and not hurt by such activity within the primary viewing area, does
it not apply equally to the viewing over the mountains ?
Mr. Goi'dbloom." Well, it does, but in the context of the world of
communications there is a need we feel to accommodate the interests
of both the cable as well as the copyriglit owners.
]Mr. Daxtelson. How would they not be accommodated ? Is it not a
fact that the royalty agreement between the copyright holder and
the broadcasting station is based in part on the number of viewers
and, in calculating the number of them, the broadcasting station
includes those who ai'e reached through the cable transmission on the
other side of the mountain?
Mr. Goldbloom. I don't know that that is necessarily correct.
INIr. Danielson". Do you have anv documentation or authority for
that?
Mr. Goldbloom. I would have to look into that.
Mr. Danielsox. I don't expect you to know answers on a multitude
of problems, but I think you are going to find in the advertising busi-
ness the rates that the broadcaster receives for advertisements— and
that is what keeps him alive — are based on the viewers; the rate he
pays the copyright holder is based on the viewers.
So. if you expand the number of viewers, you are going to expand
the advertising rates and the amount he pays for his royalties. I think
you will find that to be the case. Assuming that is true, then would not
that be your rationale on secondary transmission whether it be over
the mountain or inside the mountain, if you are applying that
rationale ?
Mr. Goldbloom. I think it would.
Mr. Danielsox. On fair use, Mr. Pattison has brought out the
analogy of making textbooks for a school. This poses a real problem
in my mind yet, I am hoping it will be cleared up. I am sure we agree
that if the school were to go through a first-class printing operation
and reprint, set plates, and type, print and bind a copy of a book, you
would have an infringement and there would be royalties.
148
Then back down one step instead of doing the traditional photo-
offset job, but it be otherwise the same, I think you wouhT agree you
still have a copyright violation. So, if you back down to a mimeograph
and suppose you typed on a stencil and then bound it with a nice,
hardboard cover, et cetera, I think you would still contend, and many
of us would, that you would still have a violation.
You take the same mimeograph, but you don't bind it and have just
loose sheets now you are confronted with whether or not it is a
copyright violation and, if you go to Xerox, now you have two
questions ; what do you do with that ?
I have gone through this step by step on purpose. I wonder if we
are coming to grips with the real issue ? Should we basically copyright
on the type of mechanical reproduction used or upon the number of
copies; is it valid to say it is the use to which they are put, whetlier
they go to a nonprofit school ? I don't know if there is a valid way of
determining this and I am seeking help because I don't understand it.
Are we saying when we talk about schools and churches, are we
saying we must be good to the nonprofit organizations? There cer-
tainly isn't this consideration on brooms and buckets and typewriters
and the people who sell printed books to the schools make a profit. I
don't know the answer and I want to find out. Thank you.
Mr. Kastenmeier. The gentleman from Illinois, Mr. Railsback.
Mr. Railsback. On page 16 of your statement, you indicate that
secondary transmission within the local service area of the primary
transmitter finds the cable system only filling gaps or improving
reception in the service area of the primary transmitter and supple-
menting the primar}^ transmission. Of course, the primary transmitter
has sponsors; when the secondary transmitter within this area picks
up the program does he not also run the commercials and wouldn't
that have an adverse effect on possibly discouraging a prospective
sponsor ?
In other words, I don't see how that wouldn't really dilute the
effectiveness of a sponsored program.
Mr. GoLDBLooM. I am not certain specifically how the FCC rules
operate, but I believe they would have to reproduce the program in its
entirety with the sponsored portions.
Mr. DANiELSOisr. I am willing to be corrected, but it is my under-
standing that when a cable system is picked up by a broadcaster that
it is transmitted in its entirety and they do not excise the commercials.
Therefore, the sponsor gets the advertising over the mountain as
well as inside of the mountain.
Mr. Eailsback. I see. First of all in respect to Father Drinan's
question, and comments, I certainly do welcome you; we invited you
to testify. Secondly, with respect to forfeiture, aren't we talking
about record pirates who have actually stolen somebody's work ?
Mr. GoLDBLOOM. Yes.
Mr. Railsback. I just want to conclude by saying that I do not
find that particular recommendation draconian. I disagree with some
others, but I thank you.
Mr. Kastenmeier. The Chair will state that indeed you were invited
along with the Justice Department, along with the Departments of
Commerce, and State. As a matter of fact, your predecessor appeared
149
in this room 10 years ago on a similar bill and you are aware of that
lam sure.
Mr. GoLDBLOoM. Yes.
Mr. Kastenmeier. In that connection, what was being considered
was a similar bill and any of the issues you spoke to this morning
were expressed then. Had the views of the Department of Justice,
the Antitrust Division and any other parts of that, changed or are
they the same as they were 10 years ago with respect to this bill?
Mr. GoLDBLOOM. I believe to the extent that issues were then in
existence, our position is close to what they were then. I don't know
because we have not examined each position we took then in light of
the position we have taken today, but I think there is a similarity
and identity.
Mr. Kastenmeier. Do I understand that you regard as the most
important issues, the issue of ornamental design in title II, term
and the manufacturing clause ; those are among the more important
positions, issues as far as the Department of Justice is concerned?
Mr. GoLDBLOOM. Yes. Mr. Chairman, and CATV.
Mr. Kastenmeier. If the bill is reported in its present form, will it
be the disposition of the Justice Department to oppose it, to recom-
mend that the President veto the bill ?
Mr. GoLDBLOOM. I cannot really speak to that at the moment. I
think there is a different function when one is recommending to the
President, what he should do with legislation from when one appears
before the Congress while it is contemplating.
]Mr. Kastenmeier. It is your stance then that you are making certain
recommendations and stating your positions on whether the bill
should be passed or not passed ; that is your reason for being here ?
Mr. GoLDBLOOM. Yes.
Mr. Kastenmeier. Thank you for your appearance.
[The prepared statement of Mr. Goldbloom follows :]
Statement of Irwin Goldbloom, Deputy Assistant Attorney General, Civil
Division, Department of Justic?e
Mr. Chairman: I am pleased to respond to the Committee's invitation to
present the views of the Department of Justice on H.R. 2223, A Bill for the
General Revision of the Copyright Law, Title 17 of the United States Code,
and for other purposes.
We are in sympathy with the general purpose of Title I of the Bill, to provide
a thorough revision and updating of the Copyright Law, Title 17, United States
Code. However, as set out below, we recommend certain modifications in the
proposed revision. We oppose Title II of the Bill which creates a new type of
intellectual property, a hybrid between a copyright and a design patent.
H.R. 2223 and its companion bill, S. 22, are nearly identical with S. 1361 as
passed by the Senate in the 93d Congress on September 9, 1974. There are,
however, technical and perfecting amendments and changes required by the
enactment of Public Law 93-573, providing for interim copyright extension and
increased penalties for tape piracy. A section-by-section analysis of S. 1361
is part of Senate Report No. 93-983, 93d Cong., at pages 102-228. Further details
as to the history of this copyright revision bill appear in the same Report
at pages 101-103. The summary below is specificially directed to features of the
Bill of particular concern to this Department.
Section 107 relates to the "fair use" doctrine. This is fully discussed in Senate
Report No. 93-983, pages 115-120. The scope of fair use in copying is illustrated
to include reproduction by a teacher or a student of a small part of a work to
illustrate a lesson (S. Report 93-983, p. 115). This example, therefore, does not
include reproduction of the entire work to illustrate a lesson. In determining
150
whether the use made of a work in a particular case is a fair use, a court is to.
consider as factors the purpose and character of the use, the nature of the copy-
righted work, the amount and substantiality of tlie portion used in relation,
to the copyrighted work as a whole, and the effect of the use upon the potential
market for or value of the copyrighted work. As to the reproduction of entire
works for classroom use, the doctrine of fair use would be applied "strictly"
(S. Kept. 93-983, p. 117).
Sections lOS, 110, and 111 cover exemptions from liability for copyright
infringement in the fields of library and archive reproduction (Section 108). the-
exemption of certain performances and displays, such as in classrooms in face-
to-face teaching activities of a nonprofit educational institution (Section 110)
and the retransmission of a primary transmission simultaneously with the
primar.v transmission or nonsimultaneously with the primary transmission if
by a "cable system" outside defined geographic areas ("secondary transmissions"
of Section 111).
Section 302 establishes a new term for the duration of copyright. Generally,
this is for a term consisting of the life of the author and fifty years after his
death. In the case of joint works, the period of fifty years commences upon the
death of the last surviving author. For anonymous works, pseudonymous works,,
and works made for hire, the copyright period is for a term of seventy-five years
from the year of its first i)ublication, or a term of one hundred years from the
year of its creation, whichever expires first. Where one or more authors are-
identified for an anonymous or pseudonymou.s work before the end of the copy-
right term, the longer period of copyright terminating fifty years after the death
of the author then applies.
Secti<m 405 deals with the effect of the omission of the copyright notice. Section-
411 covers infringement actions in certain situations.
Section 506 contains special provisions applying to persons who infringe will-
fully and for purposes of commercal advantage. Witli respect to copyright in a
.sound recording, for the first such offense, a person is fined not more than.
$25,000 or imprisoned for not more than one year, or both. For any subsequent
offense a person is fined not more than $50,000 or imprisoned not more than
two years, or both. Section 507 provides a three-year statute of limitations for
both criminal proceedings pursuant to provisions of the Bill after the cause of
action arose (under the provisions of Sections 116 and 506) and for civil actions
after the claim accrued.
Section 601 affords preferential protection to pulilishers and printers of the
United States and Canada (Report 93-983, pp. 195-200).
Sections 801-809 are concerned with the Register's duties to collect royalties
and make determinations concerning the adjustment of copyright royalty rates
for certain uses where compulsory licenses are provided by the Bill. They also
relate to his duties to determine in certain circumstances the distribution of
these royalties deposited with the Register of Copyrights. Section 803 provides
for selection of membership of the tribunal to make necessary determinations
with respect to royalty matters, to be on the basis of a list of names furnished:
by the American Arbitration Association to the Register of Copyrights. Section
804 provides for procedures to be followed by the tribunal in making its deter-
minations. Subsection (e) of Section 804 directs that the tribunal shall render a
final decision in each proceeding within one year from the certification of the
panel, certified by the Register of Copyrights on the basis of the names furnished
by the American Arbitration Association. This subsection further provides that
the Senate Committee on the Judiciary and the House of Representatives Com-
mittee on the Judiciary, upon a showing of good cause, may waive this require-
ment of the rendering of a final decision within one year from the certification
of the panel in a particular proceeding. The judicial review for tribunal final
determinations, provided in Section 809 (concerning the distribution of royalty
fecy). is limited. A court may vacate, modify or correct such a determination
if it was procured by corruption, fraud or undue means, where a member of
the j>aTiel was partial or corruT)t, and where any member of the panel was guilty
of misconduct by which the rights of any party were prejudiced.
Provisions for th*^ protection of ornamental designs of useful articles appear
in Title II of the Bill. Section 201 provides that authors or proprietors of an
original ornamental design of a useful article may secure a period of protection,
except for certain subject areas set out in Section 202, for a period provided in
Section 205. Section 20'! contains d^^finitions of the terms "useful article". "desigTi
of a useful article", "ornamental", and "original" as needed for purposes of
151
the particular protection provided by this Title. Section 204 provides that protec-
tion commences on the date when the design is first made public, either by beinff-
exhibited, publicly distributed, or offered for sale or sold to the public. Section
205 provides that the term of protection extends for five years, subject to being-
renewed for an additional five years prior to the expiration of the initial term.
Section 206 provides for certain design notices to be applied ro the products pro-
tected, and Section 207 limits recovery for infringement if the design notice
requirements of Section 206 have been omitted. However, actual notice of design-
protection to a particular person can take the place of the design notice require-
ment of Section 206.
Section 209 of Title II provides for loss of protection if registration of the
design is not made within six months after the date on which the design was
first made public, who may make application for renewal registration of a
design protected under the Bill, how and under what conditions and with what
supporting papers a design protected under the Bill can be renewed.
Section 212 of Title II deals with the examination of the design application
and provides for cancellation of registrations on application of a person who
believes he is or will be damaged by a registration under this Title. Grounds
for cancellation are that the design is not subject to protection under the provi-
sions of the Title.
Section 220 of Title II provides remedies for infringement of a design pro-
tected under this Title. It provides for a civil action to have judicial review of
a final refusal of the Administrator to register the design as for infringement
if commenced within a time period specified by the Administrator of the Title,
but not less than sixty days after the decision, and permits simultaneous remedy
for infringement by the same action if the court adjudges the design su))ject
to protection under this Title. This would appear to mean that the infringer
would have to be joined as a party defendant with the Administrator of this
Title. The requirements for such an action are that the design proprietor has
filed and prosecuted to final refusal an application for registration of the design,
a copy of the complaint in the action is delivered to the Administrator within
ten days after commencement of the action, and the defendant has committed
acts which would constitute infringement of the design.
Section 221 of Title II gives courts jurisdiction of actions under this Title
and authority to grant injunctions to prevent infringement, including temporary
restraining orders and preliminary injunctions.
Section 222 of Title II relates to recovery of infringement, setting maximum
amounts of recovery per infringing copy by way of compensation and provides
for the delivery for destruction or other disposition of any infringing articles.
Section 223 of Title II provides for cancellation of a registration of a design
by a court and certification by the court of such order to the Administrator.
Section 227 of Title II provides that copyright protection under Title I, when
utilized in an original ornamental design of a useful article, may still be a design-
work eligible for protection under the provisions of this Title. ,
The issuance of a design patent for an ornamental design for an article of manu-
facture under the patent laws. Title 35 U.S.C, terminates any protection of the
design under this Title.
Section 229 of Title II provides that nothing in this Title annuls or limits
common law or other rights or remedies available to a person with respect to-
a design which has not been made public as provided in this Title or any trade-
mark right or right to be protected against unfair competition.
Section 232 of Title II amends various other stalutes. Of particular importance
to the Department is the revision proposed for Title 28 U.S.C. § 1498(a) to pro-
vide that whenever a registered design or invention is used or manufactured by
or for the United States without license of the owner thereof, the owner's i-emedy
shall be by action against the United States in the Court of Claims for recovery
of reasonable and entire compensation. Use or manufacture of a registered de-
sign or invention by a contractor, subcontractor or any person, firm or corpo-
ration for the government and with the authorization or consent of the govern-
ment is to be construed as use or manufacture for the United States. Use or
manufacture by or for the United States of any article owned, leased, used by-
or in the possession of the ITnited States prior to, in the case of an invention,
July 1, 1918, and for registered designs, prior to July 1, 1978. is not to be the
basis of an award under this Section. Government employees have the right tO'
sue the government under this Section except when in a position to order, in-
fluence or induce use of the registered design or invention by the government.
Further excluded as a basis for claim under this Section are claims by a regis^
152
traut or patentee or assignee thereof when the design or invention was related
to the oflScial functions of the employee, in cases in which such functions in-
cluded research and development, or in making of which government time,
materials or facilities were used.
Section 233 provides that Title II of the Bill shall take effect one year after
enactment of this Act.
Section 234 precludes a retroactive effect for the provisions of the design
protection of the Bill.
Section 106 states generally the basic rights of copyright owners. Following
sections of the same chapter set forth limitations and exceptions to those rights.
The public interest in the promotion of education and scholarly pursuits calls
for a careful consideration of such circumstances as may impede the dissemina-
tion of knowledge. In this regard. Section 107 of the Bill, dealing with "fair use"
of copyrighted information, leaves unclear the extent to which librarians can
reproduce works for use in libraries. It would seem in the public interest to
work an accommodation between the copyright and such reproduction. But, as
a doctrine applied on a case-by-case basis, "fair use" renders it uncertain whether,
without infringement, librarians or library patrons can make copies of library
materials for the patrons' use. Because of the advantages of the economical
and speedy means of reproduction now available in libraries, it would be socially
desirable not to discourage use thereof by uncertainty over the extent of the
"fair use" doctrine. Thus, Ave strongly believe that a definition in tlie Bill of
the doctrine as applied to such reproduction in libraries is definitely needed.
Moreover, defining the meaning of "fair use" in this connection also could serve
to reduce uncompensated infringement. To carry out our suggestion to give maxi-
mum certainty as to "what is a fair use," and give more meaningful scope to
the exemptions from copyright liability of Section 108 discussed below, we
suggest the following changes : Section 107, last line (p. 9, line 9), change "work."
to—
"work ; provided that nothing contained in this Section shall be construed
to limit the use by reproduction in whole or in part in copies or phonorecords
or by other means specified in Section 106 whenever used in nonprofit edu-
cational activities."
Reason : Clarity of scope of fair use for educational activities.
^Section 108(d), lines 5-6 (p. 10, lines 1, 2), delete "of a small part".
Reason : Libraries should be able to reproduce entire work for scholarship.
Section 108(e), lines 4-7 (p. 10, lines 13-16), delete "if the library or archive
has * * * at a fair price,"
Reason : Too diflScult and cumbersome to make purchase investigation ; dis-
courages use.
Section 108, in subsection (a), provides that it shall not Infringe a copyright
for a library or archives to reproduce or distribute no more than one copy or
phonorecord of a work under conditions specified in subsequent parts of the
Section. These conditions require, among other things, that the reproduction
or distribution be made without any purpose of commercial advantage and that
the collections of the library or archives be open to the public or available to
specialized researchers, whether or not affiliated with the library or archives
involved or with the institution of which the library or archives is a part. Under
subsection (b), the rights of reproduction and distribution free from liability
would apply to a copy or phonorecord of an unpublished work duplicated in fac-
simile solely for preservation and security or for deposit for research use in a
library or archives of the type covered by the Section. Under subsection (c),
the exemption from infringement would apply to a duplication in facsimile of a
published work solely for replacement of a copy or phonorecord that is damaged,
deteriorating, lost or stolen, if after reasonable effort it has been determined
that an unused replacement cannot be obtained at a fair price.
The rights of reproduction and distribution under Section 108 extend to the
isolated and unrelated reproduction or distribution of a single copy or phono-
record of either a publislied or unpublished work on separate occasions unless
the lil)rary or archives is aware or has substantial reason to believe that it is
engajring in a related or concerted reproduction or distribution or engages in a
systematic reproduction or distribution of a copy of an item forming part of a
copyriglited collection or periodical issue or of a copy or phonorecord of a small
part of any other copyrighted work.
As we read this provision, it will not prevent libraries and archives from
reproducing works in machine-readable language in connection with the storage
153
and me of computerized information systems. We hope that the House legislative
history of the Bill will clearly support this construction, for the storage and use
of data in such systems is of great importance to repositories and sources of
scholarly research material. To impose copyright liability impeding the stor-
age of such data would be socially undesirable. If our interpretation of Section
108 is wrong, we recommend that the Section be changed to extend the appli-
cable exemption to reproduction in machine-readable language for storage and
use in information systems.
The ease of transfer of computerized data is another area in which H.R. 2223
raises a problem. Universities, research agencies, government, and private indus-
try are developing information networks using computers and other electronic
efpiipment to speed the transfer of information from source to user. H.R. 2223
does not provide a method by means of which information systems users can
ea^iiy obtain the permission of copyright owners for use of their material. The
difficulty and loss of time entailed in many cases in contacting owners may
inhibit users from including material in their systems. Or users may be unable
to employ material in their systems in sufficient time in situations where speed
is essential. It would appear in the puJilic interest for the Bill to contain some
guarantee that information systems which are willing to pay royalties for mate-
rial used can obtain easier access to copyrighted information, at least in high-
prifrity areas such as scientific and technological works.
The proposed legislation also leaves unclear at what point in the use of com-
puterized copyrighted material the liability for royalty payment attaches. Under
H.R. 2223, it would seem that placing copyrighted data into a computer (which
may form part of an information system) might infringe the copyright. Since
the use of computers for storage and retrieval of information to some extent may
replace the sale of books, in most cases the payment of royalties should be
required. However, just where in the process the royalty payment should be
assessed, is open to question. We believe it unwise to levy a "toll" at the "input"
stage in the process. Levying on the "input" into computers could impede the
development of information systems and may render meaningless any exemption
for tlie use of computerized information for educational purposes which may be
read into H.R. 2223.
The subject of the application of copyright to community antenna television
has presented considerable difficulty in previous drafts of proposed revisions of
the Copyright Code. H.R. 2223 attempts a compromise between the extreme
positions of complete liability for infringement of copyright by secondary trans-
mission by CATV on one hand and almost complete freedom from liability on
tlip other hand. While we support the imposition of a degree of liability upon
CATV, we believe that H.R. 2223 should provide an area of free use for such
systems within the local service area.
The first part of subsection (c) of Section 111 provides for compulsory licen-
sing of secondary transmissions of a primary transmission by an FCC licensed
broadcast station upon comj)]iance with the notice of ownership and the pay-
ment provisions of siibsection (d), and (A) the signals of the primary trans-
mission are exclusively aural and the secondary ti*ansmission is permissible
under the rules, regulations or authorizations of the FCC; (B) where the CATV
.c;ystem is, in whole or in part, within the local service area of the primary trans-
mitter; or (C) where carriage of the signals comprising the secondary trans-
mission is permissible under the FCC rules, regulations or authorizations. We
strongly urge, with respect to (B), that the secondary transmittal should be
completely free of liability ; hence, royalty-free or no licensing would be in order.
The secondary transmission in such a situation, where the CATV system is, in
whole or in part, within the local service area of the primary transmitter, finds
the cable system only filling gaps or improving reception in the service area of
the primary transmitter, supplementing the primary transmission. Such trans-
mission does not impair the primary transmitter's market : in fact, it enhanceg
it. The copyright holder is helped and not hurt by such activity.
Section 203 and Section 304Cc) (fi) (D) concern the termination of trans-
fers and licenses. These Sections would permit the author or his heirs to terminate
the original transfer of his rights at any time during a period of five years
beginning at the end of a specified time. However, Section 203(b)(4) and
parallel Section 304(c) (6) (D) (relating to transfers of copyrights subsisting
after .January 1. 1977) provide that an agreement to transfer rights subsequen:
to the termination of a prior transfer will not be valid unless made after the
effective date of that termination or unless made to the original grantee or his
57-786— 7 G—pt. 1 11
154
successor in title. We do not believe that the grantee or his successor should
be in a preferred position to enter into an agreement for transfer prior to termina-
tion of the original transfer. We see no reason why all potential transferees
should not have an equal opportunity to enter into such an agreement. It is
therefore suggested that subparagraph (4) of Section 203 (b) and subparagraph
(D) of Section 304(c) (6) be deleted.
Section 302 substantially lengthens the time of copyright protection when
compared with the duration of copyright in works under the present copyright
law. At the presnt time, protection is granted for 28 years from the date of
publication and may be renewed for a second 28 years, making a total potential
term of 56 years in all cases. United States patents for any new and useful
process, machine, manufacture or composition of matter or improvement thereof,
are granted for a term of 17 years. 35 U.S.C. 154. Patents for new, original, and
ornamental designs of articles of manufacture are granted for a period up to
14 years. 35 U.S.C. 173.
Patents for plants are granted for the same length of term as for new and
useful processes, machines, manufacture or compositions of matter. 35 U.S.C.
161. Under the proposed Bill, an author would receive a copyright for his life
and 50 years after his death. Considering the average life expectancy of people
today, this will double the length of copyright when compared with the present
one for many works. For anonymous works, pseudonymous works, and works
made for hire, the term is somewhat less but still significantly greater than
provided by the present statute.
Senate Report No. 93-983, pages 167-173, discusses various considerations
for the duration of copyriglit in works. A major argument for increa.sing the
term of copyright appears to be that the extension conforms with foreign laws
which provide for longer terms of copyright than the present United States
law. This argument is presented in the Senate study. However, we do not
believe that this should be the criterion for the proper length of copyriglit
protection in the United States.
Under the Constitution. Article 1, Section 8, the purpose of a copyright is
to promote the progress of science and useful arts by securing for limited times
to authors and inventors the exclusive right to their respective writings and dis-
coveries. While it may be urged that a copyright term of 28 years plus an addi-
tional 28 years might be insufficient to protect the interests of an author in his
writings in view of the lengthening of the ordinary life span in modern times,
the proposed Bill, by its extended duration of the copyright term, appears to
carry the protection far beyond the contemplation of the framers of the Con-
stitution. As an alternative, we propose to provide for the lengthening of the
term of the copyright duration to be at least coextensive with the lifetime of
the author. In this way, the author will be insured protection of liis work for
at least as long as he may live. Thus, we propose the substitution of an alter-
native provision to Section 302(a) as follows :
(i\) In General.— Copyright in a work created on or after January 1. 1977,
subsists from its creation and, except as provided by the following subsec-
tions, endures for a term consisting of 56 years or the life of the author,
whichever is greater.
A conforming amendment should also be made in Section 302(b). The provi-
sions of Section 302(c) should be modified to limit the duration of anonymous
works, pseudonymous works, and works made for hire, to a period of 56 years
from the year of their ci-eation or first publication.
Our proposal would carry out the constitutional concept of promoting the
progress of science and useful arts. A ufV^enr roDviiglit term, as may be
extended by the lifetime of the author, is believed more than adequate to pro-
mote this constitutional purpose.
It has also been urged that growth in communications media has lengthened
the commercial life of manv works. This does not .ins<^ify lengthening the term
of a copyright beyond .56 years or the lifetime of the author because a lengthened
commercial life is not necessarily consistent with the basic constitutional
purnose.
The basic question with respect to copyright duration to be answered by the
Congress is whether a doubling of the present copyright term for manv works
is desirable to promote the progress of science and useful arts. Other forms
of federal protection for creative works, such as pa*-ents for useful devices,
plants, and designs, are all for periods of no more than 17 years. Copvrights
in writings are already in a preferred position. We do not" believe that the
155
promotion of the progress of science and useful arts requires a doubling of the
possible 56-jear copyright period. Our alternative proposal would accommodate
such valid concerns as may exist regarding the present law and, at the same
time, carry out constitutional goals.
Section 405 deals with the effect of omission of the copyright notice. Under the
present Act, omission of notice on published copies of a work ordinarily places the
work in the public domain (17 IJ.S.C. §21). However, if such notice is acci-
dentally omitted from a particular copy or copies, copyright is not lost; but in-
nocent infringers who are misled by the accidental omission are not liable for
infringement. Under Section 405 of the Bill, omission of notice from "a relatively
small number" of copies or phonorecords publicly distributed will not invalidate
the copyright whether or not such omission was accidental. Moreover, the omis-
sion of notice will not invalidate the copyright in a work if registration for the
work is made within five years after the publication without notice and a rea-
sonable effort is made to add notice to all copies or phonorecords distributed to
the public in the United States after the omission is discovered. As under the
present law, innocent infringers who are misled by the omission of notice would
not be liable in actual or statutory damages for infringement. But under H.R.
2223, they might have to surrender profits gained through the infringement and
be subject to injunction or payment of a reasonable license fee for continuing
their activity (Section 405(b)). These provisions would delete from 17 U.S.C.
§ 21 the provision that no permanent injunction shall be had unless the proprietor
of the copyright shall reimburse the innocent infringer his reasonable outlay in-
nocently incurred if the court, in its discretion, shall so direct.
A copyright should be protected from invalidation only when the failure to pro-
vide notice was the result of an accident or mistake or in violation of the copy-
right owner's written requirement that, as a condition of authorization of public
distribution, the copies or phonorecords bear the prescribed notice, and distribu-
tion of only a small number of such items has been made to the public. To permit,
as proposed in Section 405, a copyright owner to issue an entire publication of his
worli: without notice and yet enforce the copyright tends to negate the purpose
of notice. Although innocent infringers would incur no liability, they would still
have to establish their innocence even where the omission was deliberate in many
cases. We suggest that the Section specifically be limited to the effect of omission
of the copyright notice by accident or mistake. We also believe it advisable that
the words "particular copy or copies", contained in the present statute, be used
instead of the broader and more general words "a relatively small number,"
found in Section 405, to designate the limits within which notice may be omitted
without loss of copyright. And we think the discretion in the court to order reim-
bursement to the innocent infringer should be retained.
Subject to specified exceptions, Section 601 provides that the importation into
or public distribution in the United States of more than 2,000 copies of a work
consisting preponderantly of nondramatic literary material in English by an
American or resident alien author and protected under the Copyright Code is pro-
hibited, unless the portions consisting of such material have been manufactured
in the United States or Canada. This Section would reenact in modified form a
previous, highly protectionist nontariff trade barrier (17 U.S.C. 16, 107). We do
not believe that there is either a necessity or desirability for such a provision
which creates an absolute bar to certain books published abroad.
Section 601 is entirely unrelated to questions of copyright. It does not protect
authors at all. On the contrary, Section 601 decreases the value of copyrights by
preventing an American author from granting worldwide publication rights to
an English publisher who offers more favorable compensation than an American
publisher. Whatever the merits of the original "infant industry" justification for
the manufacturing clause, the restriction is clearly unnecessary and inappro-
priate today in light of the strength and success of our industry "and in light of
our nation's commitment to eliminate nontariff barriers to international trade
and ensure vigorous competition.
For these reasons. Section 601 should be stricken from the Bill, and the "manu-
faotiiring clause" should be eliminated from our copyright law.
With respect to the Department's anti-piracy program in the sound recording
field, we note the following as areas where amendments are desirable :
Section 506 should be amended to provide for forfeiture of infringing articles
in criminal cases resulting in convictions, and a new section should be added to
provide for summary and judicial forfeitures in criminal cases.
156
At present, the government has no clear-cut authority to destroy infringing ar-
ticles which have been seized or otherwise obtained in the investigation or pros-
ecution of a tape piracy case or, for that matter, any criminal copyright infringe-
ment case. This laclv of specific authority has resulted in critical storage problems
for many F.B.I, and U.S. Marshals' offices throughout the country and poses the
embarrassing possibility that the government may be ordered to return known
infringing articles to a convicted defendant.
With proper amendments, H.R. 2223 could eliminate this most serious problem.
We strongly urge the following revisions :
1. There should be added to Section 506 a new subsection which should be
designated as :
(b) When any person is convicted of any violation of subsection (a), the
court in its judgment of conviction shall, in addition to the penalty therein
prescribed, order the forfeiture and destruction or other disposition of all in-
fringing copies or phonorecords and all implements, devices, equipment or
other articles of whatever kind used or intended to be used in the manufac-
ture, use, or sale of such infringing copies or phonorecords.
Present subsections (b), (c), and (d) need to be redesignated as subsections (c),
(d), and (e), respectively.
A conforming amendment should be made to Title 18, United States Code, Sec-
tion 2318, so that it reads as follows :
Section 2318 :
{a) ( present Section 2318 ) .
(b) When any person is convicted of any violation of subsection (a),
the court in its judgment of conviction shall, in addition to the penalty
therein prescribed, order the forfeitui-e and destruction or other disposition
of all counterfeit labels and all articles to wliich counterfeit labels have been
affixed or wliicii were intended to have had such labels affixed.
(c) Except to the extent they are inconsistent with the provisions of
tliis title, all provisions of section [new forfeiture section described below]
Title 17, United States Code, are applicable to violations of subsection (a).
2. A new section should be added reading as follows :
(a) All copies or phonorecords manufactured, reproduced, distributed,
sold, or otherwise used, intended for use, or possessed with intent to use in
violation of section 506(a), and all plates, molds, matrices, masters, tapes,
film negatives, or other articles by means of which such copies or phono-
records may be reproduced, and all electronic, mechanical, or other devices
for manufacturing, reproducing, assembling, using, transporting, distribut-
ing, or selling such copies or phonorecords may be seized and forfeited to the
United States.
(b) All provisions of law relating to (1) the seizure, summary and judi-
cial forfeiture, and condemnation of vessels, vehicles, merchandise, and bag-
gage for violations of the customs laws contained in Title 19, United States
Code, (2) the disposition of such vessels, vehicles, merchandise, and bag-
gage or the proceeds from the sale thereof, (3) the remission or mitigation
of such forfeiture, (4) the compromise of claims, and (5) the award of
compensation to informers in respect of such forfeitures, shall apply to
seizures and forfeitures incurred, or alleged to have been incurred, under
the provisions of this section, insofar as applicable and not inconsistent with
the provisions of this section ; except that such duties as are imposed upon
the collector of customs or any other person with respect to the seizure and
forfeiture of vessels, vehicles, merchandise, and baggage under the provi-
sions of the customs laws contained in Title 19 of the United States Code
shall he performed with respect to seizure and forfeiture of all articles
described in subsection (a) by such officers, agents, or other persons as may
he authorized or designated for that purpose by the Attorney General.
Proposed Section 114 should be amended to provide for the copyright owner
of a sound recording to have the right to make derivative works or it should be
amended to clarify that persons other than the copyright owner do not have such
a right absent consent of the copyright owner, notwithstanding the fact that
the sound recording copyright owner would have no such right.
Section 114 limits the specific rights of a sound recording copyright owner to
those granted to copyright owners by parts (1) and (3) of Section 106. That is,
sound recording copyright owners have the right :
(1) to reproduce the copyrighted work in copies or phonorecords; and
*******
157
(3) to distribute copies, etc.
The right to prepare derivative works based on the copyrighted work (part 2
of Section 106) is withheld from a sound recording copyright owner despite Sec-
tion 103 which states that such works are copyrightable and despite the fact
that sound recording copyright owners are entitled to make and copyright
derivative works under present law, 17 U.S.C. § 7. There is a real possibility that
an unauthorized duplicator who made a "derivative" work by slightly altering
the original copyrighted sound recording would claim that he did so legally since
the copyright owner is given no exclusive right to make derivative works.
This "potential legal problem could be eliminated by including part (2) of Sec-
tion 106 in the list in Section 114 of exclusive rights granted to a sound recording
copyright owner — an action which would grant to sound recording copyright
owners no more rights than they presently possess. Section 506 should be
amended accordingly to include part (2) of Section 106.
A third area for concern is proposed Section 301 (pages 32-33), subparagraph
(b), which states :
Nothing in this title annuls or limits any rights or remedies under the
common law or statutes of any state with respect to :
*******
(3) activities violating rights that are not equivalent to any of the
exclusive i-ights within the general scope of copyright . . . including breaches
of contract, breaches of trust, invasion of privacy, defamation, and decep-
tive trade practices. . . .
We believe this language could be read as abrogating the anti-piracy laws
now existing in 29 states relating to pre-February 15, 1972, sound recordings on
the grounds that these statutes proscribe activities violating rights "equivalent
to . . . the exclusive rights within the general scope of copyright. , . ." Certainly
such a result cannot have been intended for it would likely effect the immediate
resurgence of piracy of pre-February 15, 1972 sound recordings. (Note: in any
event, there would be no effect on sound recordings produced after February 15,
1972. since it would appear that the .states cannot constitutionally enforce their
anti-piracy laws against the unauthorized duplication of these later recordings.)
We therefore urge that Section 301(b) be amended to include a new subsection
(4) as follows:
(4) Sound recordings fixed prior to February 15, 1972.
Proposed Section .506(a) should be amended to correct the disparity of sanc-
tions between second-time infringers of sound recording and motion picture copy-
rights and .second-time infringers of other copyrights. As written. Section 506(a)
I>rovides for a maximum $10,000 fine and three years imprisonment for second-
time infringers of all copyrights but sound recording and motion picture copy-
rights. Infringers of these latter two categories are subject, upon conviction of a
second offense, to a maximum fine of $50,000 and two years impi-isonment. We
suggest that these latter infringements are sufficiently serious to warrant at
least the same maximum imprisonment for second offenders as is applicable to
second-time infringers of other copyright's, as well as the larger fine. The term
of imprisonment prescribed should therefore he at least three years.
We support the substitution of "for purposes of commercial advantage or
private financial gain" for the present requirement in 17 U.S.C. § 104 that, to be
criminal, infringements must be done "for profit". The provision in present Sec-
tion 104 for aiders and abettors has been removed, but these individuals will
be liable to prosecution under 18 U.S.C. § 2.
From the standpoint of making deterrents meaningful beyond the financial de-
terrent and provide a penalty for those who can "take" financial losses as a cost
of business, it is recommended that a maximum one-year term of imprisonment l>e
included in the sanctions under proposed Sections 116(d) and 506 (b), (c), and
(d). all of which are provisions the Department suoports.
We also note that Section 115. subparagraph (a) (1). states explicitly and with
clarity what four courts of appeals ^ have ruled is the scope of compulsory licens-
ing under present law. namelv. that absent authorization by the owner of a
composition copyright, the duplication of a sound recording embodying a copy-
T^.TotuJora Mufn'c PuMixhivQ Co. T. Melodi/ Recorrlin (;■<>, Inc., 506 F. 2d .39.^ (T.A. ?,.
r»o(>ember 27. 1974) ; Fame PuMishina Co., Tnc. v, Alahnmn Cnstom Tape. Inc.. 507 F. 2(1
667 (C.A. 5. .Tanuarv 31. 1975) : Duchei<.<? Music Corp. v. Stern 4.5S F. 2d 1305 fC.A. 9>,
certiorari denied, sub nom. Rosner v. Duchess Mii-fic Corp., 409 U.S. S47 ; and Edward B.
Mnrlcs Ulnsic Corp. v. Colorado Magnetics, Inc.. 497 F. 2d 2S9 (C.A. 10). certiorari denied,
stth nom. Colorado Magnetics, Inc. v. Edward Marks Music Corp., 419 F.S. 1120.
158
righted musical composition is an infringement of tlie composition copyright oven
though the duplicator tenders royalty payments and otherwise attempts to com-
ply with present compulsory licensing provisions. This is contained in the linal
sentence of suhpargraph ( a ) ( 1 ) , which reads :
A person may not obtain a compulsory license for use of the [nondramatie
musical] work in the duplication of a sound recording made by another.
Since this prohibition is not limited to copyrighted sound recordings, the effect is
to prevent the operation of the cominilsory license mechanism for making copies
of any sound recordings embodying copyrighted musical compositions. The De-
partment wholeheartedly supports this pro\ision.
Section 804 deals with procedures before the tribunal which determines
adjustment of copyright royalties and their distribution under specified sections
of the Bill. We object to the provision in subsection (e) of this ^Section that
the Senate Committee on the Judiciary and the House of Representatives
^Committee on the Judiciary may waive a requirement that a final decision in
■each proceeding be rendered by the tribunal witiiin one year from tlie certification
of the panel by the Register of Copyrights. The constitutional division of duties
among the three principal branches of the government places in the Congress the
legislative responsibilities. However, once a law lias been enacted, it is for the
Executive Branch to carry out the intents and purposes of the law as directed
by the Congress. In our view, legislation, once enacted, should not be modified
or waived by actions of a committee of the Congress. It is suggested that if
waiver of the one-year requii-ement is desirable under particular circumstances,
tliese circumstances be generally outlined in tlie Bill and that the tribunal be
given authority upon good cause shown to extend the period of time for
rendering decisions.
Of particular concern to this Department is the new form of copyright protec-
tion provided by Title II of the Bill. This new form of protection is a hybrid
between design patents (35 U.S.C. § 171-173) issued for a period of up to 14
years by the Patent OfHce for new, original and ornamental designs of articles
of manufacture and the copyriglit laws which provide for registration and issu-
ance of certificates of copyrights for the writings of authors. The new protection
that is provided under the Bill is not presently available under the copyright
laws and can only be obtained through a design patent after an examinati(jn
procedure which dtr^termiues whether the ornamental design meets the criteria
of patentability, including unobviousness in view of the prior art, as provided
by 35 U.S.C. 102, 103. While the protection period as proposed for the new type
of ornamental design protection is only a maximum of ten years as compared
with the maximum of 14 years available for a design patent, it is granted without
the need of meeting the novelty and unobviousness requirements of the patent
statute.
A threshold consideration before finding that the needs are such that this new
type of protection should be available is whether the benefits to the public of
such protection outweigh the burdens. We believe that insufficient need has
been shown to date to justify removing from the public domain and possible
use by others of the rights and benefits proposed under the present Bill for such
ornamental designs. We believe that design patents, as are granted today, are
as far as the public should go to grant exclusive rights for ornamental designs
of useful articles in the absence of an adequate showing that the new protection
will provide substantial benefits to the general public whicJi outweigh removing
such designs from free public use. While it has been said that the examination
procedure in the Patent Office results in serious delays in the issuance of a design
patent so as to be a significant problem and damaging to "inventors" of orna-
mental designs of useful articles, the desirable free use of designs which do not
rise to patentable invention of ornamental designs of useful artir-Ies are believed
to be paramount. If the contribution made to the public by the creation of an
ornamental design of a useful article is insufficient to rise to patentable novelty,
the design should not be protected by law. The Department of Justice has con-
sistently opposed legislation of this character.
To omit federal statutory protection for the form of a useful object is not to
deny the originator of that form any remedy whatsoever. If he can prove that
competitors are passing off their goods as the originator's by copying the prod-
uct's design, he may bring an unfair competition action against such copyists.
Crescent Tool Co. v. Eilborn d Bishop Co., 247 Fed. 299 (C.A. 2 1917). See, also,
Sears, RoeMck & Co. v. Stiffel Co., 376 U.S. 225 (1964), and Compco Corp. v.
Day-Brite Ughting, Inc., 376 U.S. 234 (1964).
159
Quite apart from our opposition to the merits of Title II, we also oppose
enactment of the design protection provisions of this Bill which would provide
a new class of actions against the United States since the Bill proposes to amend
Section 1498(a) to add the new type of design copyrights to the remedies avail-
able to inventors against the United States who have been issued United States
patents when they are used by the United States without authorization of tlie
owner. For example, by amending Section 1498 ( a ) in this way, the Congress will
he creating a completely new problem area fraught with difficulties for govern-
ment procurement. Government contractors who "reverse engineer" alleged
trade secrets in bidding competitively for government contracts would now be
faced with the necessity of designing around the "packaging looks" of a product
covered by a design copyright which may not rise to the stature of patentable
novelty under the patent iaws. Thus, the "non-utilitarian looks" of a vehicle
which'may not be protecta5)le as a design patent would be given copyright-type
protection under the Bill. We, therefore, strongly oppose the new type of protec-
tion proposed by Title II of the Bill.
Section 1498(a) is also amended to provide for the first time for suits against
the United States for unauthorized use of inventions, whether patented or
unpatented. Thus, it would appear to permit a suit based on a trade secret con-
taining an unpatented invention. This, also, we strongly oppose as inconsistent
with limiting claims against the United States in 28 U.S.C. 1498 to those recog-
nized by the patent and copyright laws. No adequate showing has been made
that this type of protection, on balance, is in the public interest.
The provision in Section 220 whereby simultaneous suit can be filed against
the Administrator who carries out the provisions of Title II (§230) and an
alleged infringer of the design in that it subjects an alleged infringer to suit in
the same action even though the threshold question whether a certificate can
issue under the provisions of the law has not been decided as between the Admin-
istrator and the applicant for registration is believed undesirable. While it is
not likely that the issuance of certificates of registration will be frequently
refused if certain basic requisites of applications are met, nevertheless, if a
situation should arise of a refusal of issuance of a certificate of registration by
an Administrator; this should require a separate and distinctive action to
secure issuance thereof, especially since governmental functions should not
normally be mixed with the proprietary enforcement functions of courts in
adjudicating private rights and remedies.
Certain technical corrections appear indicated in Title II as follows :
P. 66. lines 22 and 23 appear reversed.
P. 73, line 22, "Section 311" should read— "Section 211".
P. 73, line 26, "mortgage" should read — "mortgagee".
Mr. Kastenmeier. We would next like to call Mr. Rene D. Tegtmeyer,
an Assistant Commissioner for Patents, representing the U.S. Depart-
ment of Commerce. Would you please identify your colleagues.
Mr. Tegtmeyer. Thank you, Mr. Chairman. With me today are
David Allen and Rosemary Bowie, both of whom are from the Com-
merce Department and in particular from Patents.
Mr. Kastenmeier. I notice you have a prepared statement. You may
proceed.
[The prepared statement of Mr. Tegtmeyer follows :]
Statement of Rene D. Tegtmeyer, Assistant Commissioner for Patents,
U.S. Department of Commerce
Mr. Chairman : I appreciate this opportunity to appear before your subcom-
mittee to express the views of the Department of Commerce and its support
for H.R. 2223 with certain modifications which I shall explain.
H.R. 2223 is the result of 20 years of extensive eftort by the Copyright Office
of the Library of Congress and the Congress to revise the copyright law. I
understand that the testimony of the Register of Copyrights included a discus-
sion of the background concerning this effort and an outline of the principal
provisions of the bill. I will not attempt to be repetitive in this respect.
160
H.R. 2223 is divided into two titles ; Title I. General Revision of the Copyriglit
Law and Title II. Protection of Original Ornamental Designs. As the Depart-
ment views each title from a slightly different perspective, I would like to com-
ment on them separately this morning.
The Department of Commerce would like to highlight three specific areas in
our comments on Title I :
1. The lack of protection in U.S. government works,
2. Preemption of state law with respect to unfair competition, and
3. The inclusion of Canada in the manufacturing requirement.
PBOTECTION OF GOVERNMENT WORKS
Fii'st, proposed section 105, in prohibiting copyright protection for govern-
ment works, creates a special problem for the Department of Commerce. Under
Title 15, United States Code, Chapter 23. the Secretary is required to establish
and maintain a clearinghouse for the collection and dissemination of scientific,
technical and engineering information. This is done through the Department's
National Technical Information Service, called NTIS.
As a matter of policy. Chapter 23 requires that each of the services and func-
tions provided be self-sustaining and self-liquidating, as much as possible, con-
sistent witli its objectives. The Chapter specifically states its policy that the
general public shall not bear the cost of pulillcations and other services which
are for the special use and benefit of private groups and individuals.
With the increased use of reprography, the difficulty of meeting the require-
ment to disseminate technical information on a ba.sis that pays its own way has
increased. It is cheaper for a purchaser to buy one copy of an expensive techno-
logical publication and photocopy it rather than to buy the number of copies
that are actually needed. The lack of copyright protection for most periodicals
made available by NTIS makes this practice legal. However, if NTIS cannot
recoup the cost of preparing and handling its publications, the dissemination,
of this material cannot be maintained on a self-sustaining and .self-liquidating
basis.
An example of the potential harm which could arise from this lack of copy-
right can be seen in the publication. "Directory of Computerized Data Files and
Related Software Available from Federal Agencies— 1974". This doctiment v.-as
prepared in response to the large number of requests received for this informa-
tion. It was prepared at NTIS expense. The approximately $150,000 cost of sur-
veyiiig Federal agencies to gather the information and publishing the directory
was not reimbursed from appropriations. In order to recoup NTIS expenses, a
price of .$60 per copy was set for this 150-page directory. Anyone choosing to
make and sell competing photocopies could do so for a fraction of this price.
Thus, it was necessary for NTIS to risk substantial moneys to produce such
a pi-oduct in the absence of copyriglit protection.
Unauthorized photocopying is especially serious in connection with foreign
sales ; out of the eight largest customers of NTIS, seven are foreign entities
which engage in such cop.ving practices. It has also caused NTIS to be limited
in pricing its periodicals due to the much lower costs of duplication done by
resale marketers and potential customers of government works which are not
copyrighted.
For these reasons, we believe that copyright protection should be provided
works distributed imder Chapter 23, Title 15 of tlie United States Code, similar
to that provided under § 290(e), Chapter 7(a), Title 15, for standard reference
data prepared by the Department of Commerce under the provisions of thnt
Chapter, or in the alternative that the Congress reconsider the statutory
requirement that the services and functions provided under Chapter 23 be
self-sustaining and self-liquidating.
PKEEMPTION
Second, we agree with the preemption of State copyright laws pursuant to
section ,301 (a), and with the principle embodied in tliat section that there should
be a single, federal system for copyright. However, the language of subsection
(b) (8) of section 301 should, in our view, be modified to make it clear that the
phrase "all rights in the iwinre of copyriglit" (italics added) will not be
construed to preempt parts of the Stnte law of unfair competition which
are now codified in statute or established by Federal and State Court decisions
applying the common law.
161
Section 301(b) (3) is intended to exempt State unfair competition law from
the preemptive effect of section 301(a). Among tlie rights and remedies not
l)reempted are those arising from the violation of rights "not equivalent to any
exclusive rights within the general scope of copyright". These "not equivalent"
rights are said to include "breaches of contract, breaches of trust, invasion of
privacy, defamation, and deceptive trade practices such as passing off and false
representation." The problem we have is that the listing is incomplete and the
language is more limited than that which would describe the present scope
of established State unfair competition law.
As a solution, we propose a more comprehensive and inclusive listing of unfair
competition torts in subsection (b) (3). The proposed amendment :
"(3) Activities violating rights that are not equivalent to any of the exclusive
rights within the general scope of copyright as specified by section 106, including
breaches of contract, breaches of trust, invasion of privacy, defamation, and
Cdeceptive trade practices such as passing off and false representation] acts,
trade practices, or courses of conduct which cause or are likely to cause confusion,
mistake or deception, or which are likely to result in passing off, false or tnislead-
ing representations, disparagement, ivrongful disclosure or misappropriation of
<?. trade secret or confidential information, or activities ivhich othertvise con-
stitute unfair competition hy misrepresentation or misappropriation.'" (Deletions
bracketed ; additions italicized )
In our opinion, this proposed amendment would more accurately state the
range of unfair competition torts which are now regulated by the states, so that
the examples listed will not be limiting.
It should be noted that the phrase "unfair competition by . . . misappropria-
tion" is included in our amendment. Obviously, the "misappropriation" of all
of the words of a literary work would be in the nature of copyright and State
laws in this area should be preempted. However, we do not believe that the
entire body of State unfair competition law based upon the landmark Supreme
Court decision in International News Service v. Associated Press (248 US 215
(1918)) should be preempted. While some State decisions relying on the INS
vane may be held inapplicable under section 301(a), we believe that such a remedy
should continue to be available for the type of conduct proscribed in the INS
case.
MANUFACTtTRING CLAUSE
Third, proposed section 601, kno^'u as the "manufacturing clause", essentially
requires that English language, nondramatic literary works by Ametricau
domiciled authors must be printed in the United States or Canada. The present
copyright statute does not include such a reference to Canada. The rationale for
including Canada appears to be that wage standards in the U.S. and Canada are
comparable.
We are opposed to the inclusion of Canada in this provision. Such an inchision
would be a unilateral concession which we believe should be withheld for possible
use by the United States as negotiating leverage in seeing compensating benefits
during multilateral trade negotiations. We note that both houses of Congress
indicated forcibly that United States negotiators should obtain reciprocity for
United States concessions when they enacted the Trade Act of 1974.
Additionally, including Canada in this provision would raise problems in our
relations with other nations, in view of the "most favored nation" obligations in
the General Agreement on Tariff and Trade (GATT) and other treaties. Thus,
enactment of the bill containing this provision might bring about the possibility
of retaliation against the United States from countries other than Canada and
might otherwise hamper our efforts to eliminate non-tariff trade barriers in the
interest of our overall international trade objectives.
TITLE II
Title IT of H.R. 2223 would provide a new system for the protection of origi-
nal ornamental designs of useful articles.
Designs eligible for protection under this title would have to be original. They
cannot be staple or commonplace, or elements commonly used in the relevant
trade, or dictated solely by utilitarian functions, or three dimensional features
of wearing apparel. However, there would be no requirements that the design be
new, and therefore no search of prior designs would be necessary in order to
grant protection.
162
Title II would provide pi-otection only against copying by others and would
not give an exclusive right in the design itself. The term of protection would be
for five years, renewable for one additional five-year term.
Infringement would include making, importing, selling or distributing for sale
an article having a design copied from a protected design. Importantly however,
an Innocent seller or distributor would be an infringer only if he failed to reveal
his source and then reordered the article after having received a personal written
notice of the design protection. This is a greatly reduced level of liability when
compared with that contained in Title I where a seller or distributor is liable as
an infringer for the sale of a single unauthorized copyrighted work.
Design patent protection would continue to be available but a design patent
and design protection under this title could not be maintained concurrently. Also,
copyright protection for designs would be continued, except that if copyright pro-
tection and a design registration were obtained, the copyright protection would
not extend to utilization of the design in the useful article protected by the
design registration.
Today, original ornamental designs for useful articles may be eligible for fed-
eral protection under the patent laws or in some instances, under the copyrigiit
law. In recent years, however, it has been generally agreed that the design
patent laws do not provide adequate protection against design piracy. Because of
the relatively short-lived popularity of many designs, a patent in some cases
cannot be secured quickly enough to provide any useful protection.
The expense in obtaining a design patent today results primarily from the
fact that the Patent and Trademark Office must examine an application to deter-
mine whether it is "new, original, and ornamental". At the present time it takes
almost two years to obtain a design patent. Until the patent is granted, the
designer or manufacturer markets the designs at his own peril, subject to it
being freely copied. The alternative of withholding the design from the market
until the patent issues is impractical in many industries where styles change
rapidly and may even be seasonal.
Since the Supreme Court decision in Mazer v. Stein in 1954, the Copyright OflSce
has accepted an increasing variety of registrations for designs embodied in useful
articles so long as they meet the criteria of being artistic. However, there are
still many types of designs for which copyright protection is unavailable, for
instance, furniture and appliances. Moreover, the term of protection in the
proposed copyright law, life of the author plus fifty years, is much too long for
industrial designs which have a relatively short commercial life.
To exemplify the problems that exist under current practice we note complaints
from domestic manufacturers that their designs have been copied in certain
foreign ureas, particularly in the far east. The imitations are then imported
into and sold in the United States where they often enjoy a considerable price
advantage over the article produced in the United States. We believe that Title
II fills the need for more effective protection for design originators from this type
of unfair competition because it provides quick, inexpensive and short term
protection for original designs.
The Department of Commerce favors this legislation. However, we would like
to highlight some of our specific recommendations which will bring title II of
the bill more in line with other intellectual property protection both nationally
and internationally and will generally improve the protection offered.
Section 204(a) provides that protection for a design shall begin on the date
when the design is first made public. In subsequent sections it is made clear
that the design must be made public before an application for protection can
be filed. This provision will put U.S. residents at a disadvantage if they desire
to obtain protection of their design in foreign countries, many of which, for
example Japan, refuse protection for a design which has been made public
prior to the filing of an application for registration.
In order to prevent the possible loss of protection in foreign countries, it should
not be required that the design be made public prior to registration. Instead, pro-
tection should commence on the date that the registration is published in the
United States as provided for in section 212(a) of the bill. Protection which
begins when the registration is published would provide notice to the public
and would not penalize the person desiring to protect his design outside of the
United States. This would also make Title II consistent with Title I which has
eliminated the prior publication requirement for copyright protection.
Specific statutory language to effect this change will be submitted to the
Congress at a later date.
163
Section 209 appears to limit an application to a single desijjn. This limitation
appears to be unnecessary. An application containing ten or twenty designs
would be no more difficult to process than an application containing one design
because no search of prior desig-ns is necessary. A multiple design application
would save the applicant paperwork, thus, save him time and uiouty. It would
also save the Administrator processing time over an equal number of single
applications. This might result in a lower fee per design. As long as a separate
fee is paid for each design contained in the application there would be no loss
of revenue and both the applicant and the Administrator would beneHt. We have
therefore recommended that multiple design applications be permitted under
this title.
Title II requires that the application be accompanied by a statement setting
forth facts about the design, and that such statement must be under oath. Similar
requirements in Title 35. United States Code, covering patent and trademark
practices permit such required statements to be submitted with a written declara-
tion in accordance with IS U.S.C. 1001 making a false statement punishable by a
fine or imprisonment and jeopardizing the validity of the document. We believe
that such a provision should be applicable to the application for design registra-
tion. Therefore, such declaration should be permitted in lieu of an oath.
Tlie present fee provisions of section 215 of this title are unacceptable to the
Department of Commerce. In our opinion, the design registration system should
be completely self-supporting because the benefits of the design registration
system only accrue to the individual recipient of the registration. Thus, the
public should not be expected to bear any portion of the expense of a design
registration system.
In a study done in 1964, the $15 fee for the design registration under a bill
similar to the present one, was found to be inadequate to provide 100% cost
recovery. The $15 application fee would be even more inadequate today.
Rather than propose different fee levels for each of the functions specified in
section 215 ( a ) , the Department of Commerce proposes that section 215 be amended
in its entirety to give the Administrator the discretion to establish charges suffi-
cient to recover 100% of the cost of operation of the design registration system.
A similar approach is currently being considered by Congress in various bills ta
revise the patent laws.
TESTIMONY OF RENE D. TEGTMEYER, ASSISTANT COMMISSIONER
FOR PATENTS, DEPARTMENT OF COMMERCE
Mr. Tegtmeyer. ISIr. Chairman, I appreciate this opportunity to
appear before your subcommittee to express the views of the Depart-
ment of Commerce and its support for H.R. 2223 with certain modifica-
tions w^hich I shall explain.
TI.R. 2223 is the result of 20 years of extensive effort b}' the Copyright
Office of the Library of Congress and the Congress itself to revise
the copyright law. I understand that the testimony of the Register
of Copyrights included a discussion of the background concerning
this effort and an outline of the principal provisions of the bill. I will
attempt not to be repetitive in this respect.
H.R. 2223 is divided into two titles : Title I, General Revision of the
Copyright Law; and Title II, Protection of Original Ornamental
Designs. As the Department views each title from a slightly different
perspective, I would like to comment on them sepaiately.
The Department of Commerce would like to highlight three specific
areas in our comments on title I :
1. The lack of protection in U.S. Government works and the effect
on one function of the Department of Commei'ce,
2. Preemption of State law with respect to unfair competition, and
3. The inclusion of an exemption for Canada in the manufacturing
requirements.
164
First, proposed section 105, in prohibiting: copyright protection for
Government works, creates a special problem for the Department
of Conmierce. Under title 15, United States Code, chapter 23, the
Secretary is required to establish and maintain a clearinghouse for the
collection and dissemination of scientific, technical, and engineering
information. This is done through the Department's National Tech-
nical Information Service, called NTIS.
As a matter of policy, chapter 23 in section 1153 requires that each
of the services and functions provided be self-sustaining and self-
liquidating, as much as possible, consistent with its objectives. The
chapter specifically states its policy that the general public shall not
bear the cost of publications and other services which are for the special
use and benefit of private groups and individuals.
With the increased use of reprogi'aphy, the difficulty of meeting the
requirement to disseminate technical information on a basis that pays
its own way has also increased. It is cheaper for a purchaser to buy
one copy of an expensive technological publication and photocopy
it rather than to buy the number of copies that are actuallj^ needed.
The lack of copyright protection for most periodicals made available
by NTIS makes this practice legal. If NTIS cannot recoup the cost
of lu-eparing and handling its publications, the dissemination of this
material cannot be maintained on a self-sustaining and self-liquidating
basis.
An example of the potential harm which could arise from this lack
of copyright can be seen in the publication, "Directory of Computer-
ized Data Files and Related Software Available from Federal Agen-
cies—1974."
This document was prepared in response to the large number of
requests received for this information. It was prepared at NTIS
expense. The approximately $150,000 cost of surveying Federal agen-
cies to gather the information and publishing the directory was not
reimbursed from appropriations. In order to recoup NTIS expenses, a
price of $80 per copy was set for this 150-page directory. Anyone
choosinrr to make aiid sell competing photocopies could do so for a frac-
tion of this price. Thus, it was necessary for NTIS to risk substantial
moneys to produce such a product in the absence of copyright
protection.
I^nauthorized photoco):>3^ino: is especially serious in connection with
foreign sales; out of the eight largest customers of NTIS, seven are
foreign entities which engage in such copving practices. It has also
caused NTIS to be limited in pricing periodicals due to the much lower
cost of duplication done by resale marketers and potential customers of
Go^-emment works which are not copyriglited.
For these reasons, we believe that copyright protection should be
provided for M^orks distri]>uted under chai)ter 23, title 15, similar to
that provided under ^ 290(e), chapter 7(a), title 15, for standard
reference data prepared by the Departmen.t of Commerce under the
provisions of that chapter, or in the alternative that the Congress
reconsidpr the statutory requirement that the services and functions
provided under chapter 23 by NTIS be self-sustaining and self-
liquidating.
Turning to the question of preemption, we agree with the preemp-
tion of State copyright laws pursuant to section 301(a), and with
165
the principle embodied in that section that there shoiikl be a single,
Federal system for copyright. However, the language of subsection
(b) (3) of section 301 should, in our view, be modified to make it clear
that the phrase "all rights in the nature of copyright" will not b©
construed to preem})t parts of the State law of unfair competition
which are now codified in statute or established by Federal and State
court decisions applying the common law. _ .
Section 301(b) (3) is intended to exempt State unfair competition
law from the preemptive effect of section 301(a). Among the rights
and remedies not preempted are those arising from the violation of
rights "not equivalent to any exclusive rights within the general scope
of copyright." These "not equivalent" rights are said by the bill to
include "breaches of contract, breaches of trust, invasion of privacy,
defamation, and deceptive trade practices such as passing off and false
representation." The problem we have is that this listing is incom-
plete, and the language is more limited than that which would de-
scribe the present scope of established State unfair competition law.
As a solution, we propose a more comprehensive and inclusive listing
of unfair competition torts in subsection (b) (3) . The proposed amend-
ment :
(3) Activities violating rights that are not equivalent to any of the exclusive
rights within the general scope of copyright as specified by section 106, including
breaches of contract, breaches of trust, invasion of privacy, defamation, and
acts, trade practices, or courses of conduct which cause or are likely to cause
confusion, mistake or deception, or which are likely to result in passing off, false
or misleading representations, disparagement, wrongful disclosure or misappro-
priation of a trade secret or confidential information, or activities which otherwise
constitute unfair competition by misrepresentation or misappropriation.
In our opinion, this proposed amendment would more accurately
stat*^- the range of unfair competition torts which are now regulated
by the States, so that the examples listed will not be limiting.
It should be noted that the phrase "unfair competition by * * *
misappropriation" is included in our amendment. Obviously, the
"misappropriation" of all of the words of a literary work would be
in the nature of copyright, and State laws in this area should be pre-
empted. However, we do not believe that the entire body of State
unfair competition law based upon the landmark Supreme Court deci-
sion in rnfernat'/onal Neivs Service v. Associated Press (248 U.S. 215
(1918) ) should be preempted. While some State decisions relying on
the lA^iS case may be held inapplicable under section 801(a), we be-
lieve that such a remedy should continue to be available for the type
of conduct proscribed in the IiVS case.
Turning to the third point in title I, the proposed section 601. known
as the "manufacturing clause," essentially requires that English lan-
guage, nondramatic literary works by American domiciled authors
must be pi'inted in tlie United States or Canada. The present copyright
statute does not include such a reference to Canada. The rationale for
including Canada appears to be that wage standards in the United
States and Canada are comparable.
We are opposed to the inclusion of Canada in this provision. Such
an inclusion would be a unilateral concession which we believe should
be withheld for possible use by the United States as negotiating lever-
age in seeking compensating benefits during multilateral trade nego-
tiations. We note that both Houses of Congress indicated forcibly that
166
U.S. negotiators should obtain reciprocity for U.S. concessions when
they enacted the Trade Act of 1974, at the end of the last Congress.
Additionally, including Canada in this provision would raise prob-
lems in our relations with other nations, in view of the "most favored
nation" obliirations in the General Agreement on Tariff and Trade
(GATT) and other treaties. Thus, enactment of the bill containing
this provision might bring about the possibility of retaliation against
the United States from countries other than Canada and might other-
Avise hamper our efforts to eliminate nontariff trade barriers in the
interest of our overall international trade objectives.
If I may turn to title II of H.R. '2223, that would provide a new
system for the protection of original ornamental designs of useful
articles.
Designs eligible for protection under this title would have to be orig-
inal. They cannot be staple or commonplace, or elements commonly
used in the relevant trade, or dictated by utilitarian functions, or three
dimensional features of wearing apparel. However, there would be no
requirements that the design be new, and therefore no search of prior
designs would be necessary in order to grant protection.
Title II would provide protection only against copying by others
and Mould not give an exclusive right in the design itself. The term of
protection would be for 5 years, renewable for one additional 5-year
lenn.
Infringement would include making, importing, selling, or distrib-
nting for sale an article having a design copied from a protected
design. Importantly however, an innocent seller or distributor would
be an infringer only if he failed to reveal his source and then reordered
the article after having received a personal written notice of the design
protection.
This is a greatly reduced level of liability when compared with that
contained in title I where a seller or distributor is liable as an infringer
for the sale of a single unauthorized copyrighted work.
Design patent protection would continue to be available, but a design
patent and design protection under this title could not be maintained
concurrently. Also, copyright protection for designs would be con-
tinued, except that if copyright protection and a design registration
were obtained, the copyright protection would not extend to utilization
of the design in the useful article protected by the design registration.
Today, original ornamental designs for useful articles may be eligi-
ble for Federal protection under the patent laws or in som.e instances,
under the copyright law. In recent years, however, it has been gen-
erally agreed that the design patent laws do not provide adequate pro-
tection against design piracy. Because of the relatively short-lived
popularity of many designs, a patent in some cases cannot be secured
quickly enough to provide any useful protection.
The" expense in obtaining a design patent today results primarily
from the fact that the Patent and Trademark Office must examine an
application to determine whether it is "new, original, and ornamental."
At tlie present time it takes almost 2 years to obtain a design patent.
Until the patent is granted, the designer or manufacturer markets the
design at liis own peril, subject to it being freely copied. The alterna-
tive of withholding the design from the market until the patent issues
167
is impractical in many industries where styles change rapidly and may
even be seasonal.
Since the Supreme Court decision in Mazer v. Stein in 1954, the
Copyright Office has accepted an increasing variety of registrations
for designs embodied in useful articles so long as they meet the criteria
of being artistic. However, there are still many types of designs for
which copyright protection is unavailable, for instance, furniture and
appliances. Moreover, the term of protection in the proposed copy-
right law, life of the author plus 50 years, or even the present law, 28
years, is much too long for industrial designs which have a relatively
short commercial life.
To exemplify the problems that exist under current practice we
note complaints from domestic manufacturers that their designs have
been copied m certain foreign areas, particularly in the Far East, The
imitations are then imported into and sold in the United States
where they often enjoy a considerable price advantage over the article
produced here. We believe that title II fills the need for more effective
protection for design originators from this type of unfair competition
because it provides quick, inexpensive, and short-term protection for
original designs.
The Department of Commerce favors this legislation. However, we
would like to highlight some of our specific recommendations which
will bring title II of the bill more in line with other intellectual prop-
erty protection botli nationally and internationally and will generally
improve the protection offered.
Section 204(a) provides that protection for a design shall begin
on the date when the design is first made public. In subsequent sections
it is made clear that the design must be made public before an applica-
tion for protection can be filed. This provision will put U.S. residents
at a disadvantage if they desire to obtain protection of their design in
foreign countries, many of which, for example, Japan, refuse protec-
tion for a design which has been made public prior to the filing of an
application for registration.
In order to prevent the possible loss of protection in foreign coun-
tries, it should not be required that the design be made public prior to
registration. Instead, protection should commence on the date that the
registration is published in the United States as provided for in sec-
tion 212(a) of the bill. Protection which begins when the registra-
tion is published would provide notice to the public and would not
penalize the person desiring to protect his design outside of the United
States. This would also make title II consistent with title I which has
eliminated the prior publication requirement for copyright protection.
Specific statutory language to effect this change will be submitted to
the Congress at a later date.
Section 20D appears to limit an application to a single design. This
limitation appears to be unnecessary. An application containing 10 or
20 designs would be no more difficult to process than an application con-
taining 1 design because no search of prior designs is necessary. A
multiple design application would save the applicant paperwork,
thus, save him time and money. It would also save the Administrator
processing time over an equal number of single applications. This
might result in a lower fee per design. As long as a separate fee is paid
168
ior each design contained in the application there would be no loss of
revenue and both the applicant and the Administrator would benefit.
We have therefore recommended that multiple design applications be
p-^iTnitted under this title.
Title II requires that the application be accompanied by a statement
setting forth facts about the design, and that such statement be un-
der oath. Similar requirements in title 35, United States Code, cover-
ing patent and trademark practices, permit such required statements
to be submitted with a written declaration in accordance with 18 U.S.C.
1001 making a false statement punishable by a fine or imprisonment
and jeopardizing the validity of the document. We believe that such
a provision should be applicable to the application for design registra-
tion. Therefore, such declaration should be permitted in lieu of an
oath.
The present fee provisions of section 215 of this title are unaccept-
able to the Department of Commerce. In our opinion, the design i"eg-
istration system should be completely self-supporting because the bene-
fits of the design registration system only accrue to the individual
I'ecipient of the registration. Thus, the public should not be expected
to bear any portion of the expense of a design registration system.
Their benefits are too remote.
In a study done in 1964, the $15 fee for the design registration under
a bill similar to the present one, was found to be inadequate to provide
100-percent cost recovery. The $15 application fee would be even more
inadequate today.
Rather than propose different fee levels for each of the functions
specified, the Department of Commerce proposes that section 215 be
amended in its entirety to give the Administrator the discretion to
establish charges sufficient to recover 100 percent of the cost of opera-
tion of the design registration system. A similar approach is currently
being considered by Congress in various bills to revise the ])atent laws.
Mr. Kastenmeier. Thank you, Mr. Tegtmeyer. Who is the adminis-
trator under this particular pi'O vision ?
Mr. Tegtmeyer. The administrator would be designated by the
President if the bill were passed in the form it is.
Mr. Kastenmeier. Is it presumed that such an administrator would
be separate or part of the Copyright Office or the Patent Office or
what?
Mr. Tegtmeyer. The assumption is that the administrator would he
with the Patent and Trademark Office in the Department of
Commerce.
Mr. Kastenmeier. Why are we unable to modify the patent laws to
otherwise effect more reasonable treatment of design applications so
that this whole title would be unnecessary, so it could be handled under
the present law ?
Mr. Tegtmeyer. We presently have that objective, to reduce that
pendency for utility and design patents to 18 months. Even though that
time is lagging a little bit we expect that that wait will be reduced to
18 months in the very near future. The reason for requiring that length
of time is the fact that we must examine the application to determine if
it meets the criteria set forth in the ]n-esent statute and this cannot be
done during the short period in vv'hich you can register a design.
Mr. Kastenmeier. Would the administrator be under the Commis-
sioner of Trademarks and Patents for the j^urpose of direction?
169
Mr. Tegtmeyer. I'm not attempting to presume that the President
would in fact designate the Patent and Trademark Office as admin-
istrator but it would presumably be placed there, under the Com-
missioner of Patents and Trademarks, if it was placed there at all.
Mr, Kastenmeier. Are you satisfied that title II is to be considered a
part of the general revision of the copyright law or do you think it
more appro])riate that it ought to be considered by itself ?
Mr. Tegtjueyer. We are satisfied that it is to be considered as a gen-
eral part of the copyright laws.
Mr„ Kastenmeier. Do I understand that the revisions that you sug-
gest are unlike patents in that you would go by first to file criteria
rather than a first to invent ?
Mr. Tegtmeyer. We're talking about a requirement in order to ob-
tain protection as to origination, the party that originates the design
and filed and application therefore could obtain the protection; noth-
ing would prevent someone else from initiating the same design and
also obtaining the same protection.
Mr. Kastenmeier. I read your statement which says that instead pro-
tection should commence on the day that the registration is published
as a deviation from the theoiy that a copyright patent protection is
other than the rest of the world, it is in essence a first to file protec-
tion or, in this situation, publication rather than the first use of a
design ?
Mr. Tegtmeyer. Yes, in some respects.
Mr. Kastenmeier. This is a matter of understanding, I guess. You
state that the designs to be eligible would have to be original, however,
there are no requirements that the desigii be new. What is the distinc-
tion, the practical distinction, for our purposes?
Mr. Tegtmeyer. The distinction would be that if you originated a
design that somebody else originated in the past or created in the past.,
then you may still obtain protection so long as you were not copying
the former individual's design and you developed it totally inde-
pendently through your own originality.
Mr. Kastenmeier. I see. The other part of your testimony, do I
understand, that unlike others who have testified, you support reten-
tion of the manufacturing clause basically so it can be used essentially
as a negotiating factor ?
Mr, Tegtinieyer. I think our views are very similar to those of the
Department of State. There is an opportunity here to use exceptions
to the manufacturing clause for the purposes of negotiation in multi-
lateral trade negotiations when they take place. Such negotiations are
beginning to take place now and will begin on a more formal basis
later in the year.
Mr. Kastenmeier. Maybe I misunderstood. I understood them to sug-
gest that the existence of the manufacturing clause causes us a great
deal of difficulty. I did not understand that they wanted it retained to
use as leverage for future negotiations.
Mr. Tegtmeyer. We would agree with the elimination of the manu-
facturing clause over possibly a period of time as they indicated in
response to your question. Our point about negotiations was pri-
marily that, if the manufacturing clause was to stay and if Canada
was to be placed in it, we ought to obtain some compensation for add-
ing the exemption for Canada in multilateral trade negotiations.
57-786 — 76 — pt. 1 12
170
Mr. Kastexmeier. Do you not understand those who have thus far
designed the copyright bill to specifically exclude State unfair com-
petition laws for a reason ?
Mr. Tegtmeyer. I mentioned in the testimony that we agree with
the preemption of the State laws as to copyright-type protection but
feel that the bill should not upset the present protection that is avail-
able under State statutes and the common law of unfair competition.
We specifically mentioned the International News case in this comiec-
tion. That case represents an example of one area wliich we partic-
ularly feel should not be preempted by the copyright law because the
copyright law does not provide the same nature of protection that the
International Netos case decision does.
That is, the content of the news was protected in that case as opposed
to the wording or manner of expression of the news.
Mr. Kastenmeier, On that point, have you conferred with the Copy-
right Office or any other Federal agencies ? Do you find them in agree-
ment with your position?
Mr. Tegtmeyer. We have been in contact with some other Federal
agencies and in contact with the Copyright Office, as well. We have
not found agreement with our position on all points.
]Mr. Kastenmeier. Thank you. I yield to the gentleman from Il-
linois. Mr, Kailsback.
Mr. Railsback. Mr. Tegtmeyer, I find myself in somewhat of a
dilemma ; who actually speaks for the administration ?
There seem to be disagreements with virtually everybody. We have
the Department of State disagreeing with evervbody except on the
manufacturing clause and now we have the Department of Commerce
that takes a different view. Does anyone purport to speak for the
administration?
Mr. Tegtmeyer. Our testimony only purports to speak for the De-^
partment of Commerce.
jNIr. Railsback. The Justice Department testified with respect to
title II that they were concerned that this title would afford some new
protection, but it would not include a finding of novelty or obvious-
ness ; wliat do you think of that ?
]Mr. Tegtmeyer. Copyriglit law presently, and as proposed in title
I. does not require a test of novelty or unobviousness for protection.
The test applied in the design legislation is one of originality. In-
fringement is accomplished by copying the desigTi literally rather
than by separate origination. So the protection provided by title II
is more in the nature of copyright j^rotection rather than patent.
Mr. Railsback. So, you would disagree that a finding by the Gov-
ernment of unobviousness is needed ?
]\Ir. Tegtimeyer. Yes; we do. The bill provides protection in one
area that would not be protected by the present patent laws and
where there is design piracy occurring. Protection under title II is
desirable because of the requirement of novelty and unobviousness
in the patent law and because of the fact that the copyright laws
as they exist today have not been extended to cover all of the designs
that are covered in the proposed legislation in title II.
]\rr. Railsback. You are not, I presume, suggesting that your De-
partment favors section 601 ? I think Mr. Kastenmeier asked you and
171
you appeared to indicate primary concern, about the inclusion of
Canada but, you don t favor a munuiacturing clause, or do you ^
Mr. Tegtmeyer. V\ e do not favor a numufacturintr clause aside from
the question as to whether or not Canada should be exempted.
Mr. Kau.sback. So in that respect your testimony is not at variance
with the other agencies ?
Mr. Tegtmeyer. No.
]Mr. Kailsback. If you can keep track of all of that differing
testimony.
Mr. Tegtmeyer. AVe did make the additional point of saying that if
Canada was to be included as an exception in the manufacturing clause
that it be done by the use of its exception in negotiations with other
countries as leverage to get something in return.
Mr. Railsback. You do favor, do you not, the prepared expansion
of the duration of a copj'right ?
]\Ir. Tegtmeyer. Yes; we do. In that respect, I might point out that
we have reviewed the reasons for extending the copyright term that
were set forth in one of the earlier reports on copyright revision legis-
lation. I might note, in particular, Eeport No. 83 from the 90th Con-
gress first session. It is a report of the chairman, Mr. Kastenmeier,
for the Committee on the Judiciary. On pages 100 through 103 there
are a num.ber of what we feel are well- justified reasons for extending
the term of copyright to life of the author plus 50 years. In the report,
there are some seven such reasons listed. The committee at that time
stated, and I quote from page 102 of the report, "The committee
concluded that the need for a longer total term of copyright had been
conclusively demonstrated."
Later in the report it stated, "The committee has concluded that
an author's copyright should extend beyond his lifetime and, judged by
this standard, the present term of 5G years is too short." There are
some seven reasons set forth which we feel are consistent with the
purpose of the copyright law, that is to further creativity in writings
and so forth under the Constitution.
Mr. Railsback. I think you've been very helpful.
jSIr. Kastenmeier. Mr. Danielson.
'Sir. Daxielsox. Do you know whether foreign states have a com-
parable provision to our title II to protect original ornamental designs ?
Mr. Tegtmeyer. Most foreign countries have a provision similar
generally, at lefist, to title II and there is an international convention.
The Hague Agreement for the International Deposit of Industrial
Designs. I am not sure of the number of countries involved.
Mr. Daxielsox. Are we a party ?
Mr. Tegt3Ieyer. No. I am not sure whether we would want to be be-
cause of certain provisions in the convention.
Mr. Daxielson. One problem I have, one of the provision qualifiers
is that it be ornamental ; isn't that almost entirely subjective ?
Mr. Tegtmeyer. Essentially, it is the type of test as applied under
the copyright law presently with respect to desigrns.
Mr. Daxielson. But beauty is still in the eye of the beholder and I
have a problem with this. I don't know. I need an answer to this, I
need convincing. Thank vou.
172
Mr. Tegtmeyer. If I may add one point that may be helpful, one
thing you can do is to compare the fact that it must be ornamental as
opposed to functional.
Mr. Daxielson. Yes ; but it is also, as I read the Code provisions, I
think it relates to prettiness or beauty ; I have a problem with this.
Mr. Tegtmeyer. That's not the intent of the provision as we under-
stand it.
Mr. Drinan. I wonder if I might ask one question. If you would
just give us an example. How many of these fundamental things you
have described could or would get a copyright or patent I
Mr. Tegtmeyi:r. That would be difficult to predict because you don't
laiow whether or not they would meet the test of novelty for patent
protection.
Mr. Drinan. In your testimony you suggest only two areas and they
are furniture and appliances. But, you give us a for instance on what
type of tilings might come under title II ?
Mr. Tegtmeyer. Linoleum and wall coverings, which I believe are
covered under the present copyright law as it is interpreted, as well
as furniture designs, appliances and other household goods which
would have a design, an original design.
Mr. Drinan. Do you fear any possibility of restraining trade or
even monopoly ?
Mr. Tegtmeyer. We feel the protection is in the nature of a copy-
right provision and is only against copying. If you compare it to
piracy of tapes and records, we find it very similar. We are talking
about someone who has pirated or copied a design, not somebody who
has independently originated it himself.
Mr. Drinan. I tend to agree with ISIr. Eailsback that there is too
much confusion, but your testimony has been helpful. I wish we had
longer.
Mr. Kaskenmeier. On behalf of the committee, we appreciate your
appearance again before us on a slightly diif erent type of bill than you
normally appear before us with and we wish to thank your col-
leagues. This concludes the testimony this morni)ig on the subject of
the revision of copyright laws. We shall next meet as a subcommit-
tee on ]May 14, Wednesday at 10 a.m. in room 2226 for further hear-
ings.
[Reports on H.R. 2223 were received by the subcommittee from the
Department of State, the Acting Librarian of Congress, and the Na-
tional Aeronautics and Space Administration, as follov/s:]
Department of State,
Washington, D.C., May 7, 19'75.
ITon. Peter W. Rodino, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, D.C.
Dear Mr. Chairman : The Secretary has asked that I respond to your letter of
February 10, 1975, requestin.e: the Department of State's views on H.R. 2223,
for the general revision of the Copyright Law, Title 17 of the United States
Code, and for other purjjoses.
The first copyright law of the United States was enacted by the Fir.st Congress
in 17f)0, with comprehensive revisions being enacted at intervals of about 40
years, in 1S31. 1870 and 1909. The present U.S. copyright law, title 17 of the
United States Code, is basically the same as the Act of 1909. During the ensuing
yeai's tremendous strides have been made in technology and te<.'hni(iues for
communicating printed matter, vi.sual images, and recorded sounds. The.se te<"h-
nical advances have generated new industries and methods for the reprotluetioa
173
tind dissemination of copyriglited works and new business relationships have
developed between authors and users. Although these two groups have differed
on various issues, both recognize the 1909 statute does not stimulate authors to
create or reward them for their efforts and fails to consider present or future
technological developments in communications.
Although we tali;e exception to one section of H.R. 2223, the Department other-
wise supports the enactment of this important legislation. Our comments on
H.R. 2223 are directed to those sections which relate to the conduct of our foreign
relations and therefore are of interest to the Department. These sections are the
following: Section 104 concerning subject matter of copyright and national
origin ; Section 302 on the duration of protection, and Section 601 relative to
restrictions against importation of certain copyrighted materials from other
countries.
ISectlon 10^. Subject Matter of Copyright: National Origin — (c) .
Tlie Department supports the aim of tliis section which is to deal with the
possibility that action may be instituted in L-uited States courts by a foreign
government to divest its citizens or autliors of rights to their works or block
publication of their works within the United States. We do not have any evidence
tliat an action of this nature is likely to occur. If it did, however, it would rep-
resent undesirable official interference with the freedom of expression, and we
therefore believe that it should be guarded against. The international copyriglit
system embodied in the Universal Copyi'ight Convention is intended to '"insure
the respect for the rights of the individual and encourage the development of
literature, the sciences and tlie arts". The obligations contained in the Convention
.shouUl not become the vehicle to suppress free communication in tlie United
States of ideas and literature unacceptable to authorities of some signatories
to the Convention.
Were such a provision to be enacted, it would be necessary to avoid language
which might inadvertently interfere with legitimate governmental acquisition
of copyright. We understand tliat otlier U.S. Government agencies are drafting
language to meet the purpose of Section 104(c) in a technically different manner.
We have not reviewed these proposals and are unable to express our opinion
as to their merits. However, we support the aim of appropriately drafted legisla-
tion that would deny effect in United States courts of a foreign nation's laws or
practices desigiied to deprive the authors of that country of the rights to publish
and protect their literary and artistic works in the United States.
Section 302. Duration of Copyright: TTorfcs Created on or after January 1, 1915.
Section 302 concerns the duration of copyright (i.e. term of protection) and is
one of the most important provisions, if not the most important in the revision
bill. Basically, Section 302(a) provides for a copyright term consisting of the
life of the author and 50 years after his death. The importance of the provision
is borne out l)y the fact that the Register of Copyrights regards a "life-plus-.iiO
term" as the "foundation of the entire bill". Such a term of protection would be
more consistent with the practice of a very large ma.iority of other countries
that are members of the international copyright community. This provision would
also remove a major obstacle to the possible adherence to the Berne Convention
for the Protection of Literary and Artistic Works by the T'nited States, Article
7 of which requires states party to the convention to provide such a term of
protection. Such a change would facilitate and simplify international copy-
right protection for U.S. nationals. Therefore, the Department of State strongly
supports the duration of copyright protection as proposed in Section 302.
Section 601. Manufacture, Importation and Puilic Distriltution of Certain
Copies.
Section 601 relates to the so-called "manufacturing clau.se" which is designed
essentially to protect the U.S. printing industry. ITnder Section 601 the importa-
tion into or the distribution within the U.S. of English language copies of cer-
tain works whose authors are U.S. nationals (living in the United States) or
domiciliaries would be prohibited unless the copies are produced in, or made
from type set in, or plates made in, the United States or Canada. Also com-
pliance with the manufacturing requirements no longer would constitute a
condition of copyright protection ; the effects of noncompliance would be limited
to rights with respect to reproduction and distribution of copies. Section 601(d)
provides a complete defense in any civil action or criminal proceeding for in-
fringement of the exclusive rights of reproduction or distribution of copies where^
174
Tinder certain circumstances, the defendant proves Tiolatiou of the manufactur-
ing requirements.
The Department notes with satisfaction that, on the whole, there has been
a liberalization of the manufacturing clause as it exists today. For example, a
violation of the manufacturing clause as regards a book would not affect the right
of the copyright proprietor to authorize a motion picture version or other use
of the book. It would merely affect enforcement of copyright with respect to
publication as a book. Further, the number of copies manufactured abroad that
may be imported has been increased from 1,500 to 2,000.
Despite this liberalization, Section 601 would continue the protectionist fea-
tures of the manufacturing clause. This kind of protection is fundamentally
inconsistent with basic U.S. policy in international trade. For several decades
we have pursued a policy of reducing tariffs and other trade barriers in the
interest of promoting an open international economic system. We believe that
the broad trading interests of the U.S. and its people continue to be best served
by a general reduction of trade barriers including non-tariff barriers. This is
the policy we are carrying forward in the current multilateral trade negotiations
being undertaken in Geneva under the authority of the recently enacted Trade
Act. During this round of negotiations attention will be focused particularly
on non-tariff barriers, and one of our major negotiating objectives will be to
reduce or eliminate non-tariff barriers of other countries which restrict U.S.
trade. We believe that it is important to note this inconsistency in consider-
ing the continuation of the manufacturing clause.
Furthermore, the exception for Canada introduced by this bill into the manu-
facturing clause would violate our obligations under the GATT and various
bilateral treaties. The United Kingdom has protested and we expect that other
foreign countries which are being discriminated against by this measure will
protest, thereby introducing another element of discord and potential retaliation
into our relations with those coimtries. Specifically, the exception would violate
our obligation under Article XIII of the GATT which requires non-discrimina-
tory application of quantitative restrictions. Although the U.S. could seek a
special waiver from the GATT Contracting Parties to permit this exception,
this procedure would be particularly undesirable at this time in view of the
opening of the new round of multilateral trade negotiations at Geneva. The
exception would also violate commitments in various Friendship, Commerce and
Navigation treaties, which we have concluded with most of the other industrial-
ized nations.
These treaties normally impose obligations on the U.S. before it introduces
non-tariff barriers on important products of the other country, and forbids the
prohibition of the other country's products unless the product of third countries
are similarly prohibited.
In conclusion, the Department of State believes that the updating of the U.S.
copyright law is most desirable and supports the enactment of H.R. 2223. A
modernization of the copyright law to take into account the important technologi-
cal advances in the copyright field is in the interest of all members of the copy-
right commimity. It is also important in bringing the United States in step in
copyright with the other principal countries of the world.
The Oflice of Management and Budget advises that there is no objection to
the submission of this report.
Sincerely yours,
Robert J. McClosket,
Assistant Secretary for
Congressional Relations.
The Librarian of Congress.
Washington, D.C., August 26, 1975.
Hon. Peter W. Rodino,
Chairman, Committee on the Judiciary,
U.S. House of Representatives, Washington, B.C.
Dear Mr. Rodino: This refers to your reque.st for llie views of the Library of
Congress and the Copyright Office on H.R. 2223, a bill for the general revision
of the Copyright Code, title 17 U.S.C, for the establishment of protection of
ornamental designs of useful articles in the form of the Design Protection Act,
and for other purposes.
The current bill is the latest in a series of bills pending in Congress since 1905
to effect a general revision of the Copyright Code. H.R. 2223, except for technical
175
amendments, is tlie same as the bill that passed the Senate in the 93rd Congress,
S 1361 93rd Congress, 2d Session (1974), by a vote of 70 to 1. The Kastenmeier
bill (HR 2223) is also substantially identical, except for Chapter 1, to the bill
passed by the House of Representatives in 1967, H.R. 2512, 90th Congress, 1st
Session. , x ^ ^.-^ j ^r - m—
The Register of Copyrights, Barbara Ringer, and I testified on May <, 19(o
before the House Subcommittee on Courts. Civil Liberties, and the Administration
of Justice and urged enactment of the revision bill in this Congress. We reiterate
the strong support of the Library of Congress and the Copyright Office for this
bill. As Ms. Ringer remarked in her testimony before the Subcommittee: "A
Twentieth-Century copyright statute is long overdue in the United States, and
the present need for a revised law that will anticipate the Twenty-First Century
is so obvious as to be undeniable."
The Register of Copyrights has submitted to the House Subcommittee chaired
by Mr. Kastenmeier a series of brief, objective analyses of the key provisions of
the bill. She is also preparing a supplemental report on the revision bill and plans
to submit this to the Committee on the Judiciary in early fall. I shall therefore
confine my comments to general support of the copyright revision bill, reference
to the recent changes by the Senate Subcommittee on Patents, Trademarks, and
Copyrights, specific mention of a few recommended changes in title I, and general
support for title II.
1. GENERAL COMMENTS ON TITLE I
The current copyright revision effort began twenty years ago. The basic bill
has been under legislative consideration for more than ten years. However, active
consideration of the bill has peaked at different times in each house, and the
House of Representatives has not considered the bill thoroughly since LI.R. 2.512
passed the House in 1967. The exceedingly careful preparation of the study and
drafting phases of the revision program is reflected in the strength of the "basic
bill," which has remained intact since the House last considered it. For example,
the following fundamental provisions of the bill have stood the test of time : a
single national system for copyright protection under the Federal copyright
statute; provisions governing the term of new works and subsisting copyrights;
limitations on the assignment of an author's right ; copyright formalities, includ-
ing notice, deposit, and registration : copyright infringement provisions ; and
housekeeping provisions affecting the Copyright Office and the registration
system.
Enactment has been delayed because of a few issues concerning the scope of the
exclusive rights granted under the bill and limitations to those rights. For many
years, the key issue was the limitations on the exclusive rights affecting secondary
transmissions, principally cable television. Other issues, such as library photo-
copying, computer uses of copyrighted works, public broadcasting, and educa-
tional uses of copyrighted works in general have waxed and waned.
Now that cable television litigation seems to have run its course, this issue is
ripe for a legislative solution. The Williams & Wilkins v. United States, 487 F.2d
1315 (Ct. of Claims 1973 aff'd by equally divided court, 420 U.S. 376 (1975) ) litiga-
tion over library photocopying has ended inconclusively. In both instances, the
courts have urged legislative solutions for the complex problems caused by the
impact of new technology on an antiquated copyright law.
The Libraiy of Congress and the Copyright Office are ready to provide what-
ever assistance the Committees or Members of Congress wish in presenting bal-
anced explanations of the provisions of the bill or of additional proposals. With-
out endorsing particular solutions, we do endorse wholeheartedly the general
concept of reasoned discourse and debate on the issues and good faith attempts
to reach compromise positions, followed by a Congressional decision on the
particular proposals. We genuinely believe that these problems are capable of
solution. We also believe that an effective copyright system is not likely to survive
further delay in enacting a revision of the 1909 law.
2. SENATE ACTION ON S. 22
The Senate Subcommittee on Patents, Trademarks and Copyrights reported
a companion bill. S. 22, to the Senate Judiciary Committee on June 13. 1975. We
should like to bring to your attention the substantive changes in the Senate bill.
Royalty Tri'bvnal. — ^The Senate Subcommittee has restored the provision in
sections 801 and 802 for periodic review of the royalty rate for jukebox uses of
copyrighted works.
176
Federal pre-emption. — The Subcommittee has accepted an amendment to sec-
tion 301 specifically reserving state law protection for misappropriation of copy-
riirht subject matter provided the relief is not equivalent to any of the exclusive
rights within the general scope of copyright.
ProhiMtion against involuntary transfers. — The Subcommittee has replaced
the provision prohibiting expropriation of copyrighted works in section 104(c)
with a new provision in section 201(e) prohibiting involuntary transfere.
HingJe registration for several contributions to periodicals. — Two new sub-
paragraphs have been added to section 408(c) authorizing a single registration
for contributions to a periodical by the same individual author under certain
conditions.
Fee schedule. — A new schedule of fees has been added to section 708.
Voluntary licenses for use of copyrighted works by the blind and physically
handicapped. — A new section 710 has been added directing the Register of Copy-
rights to establish by regulation standardized procedures under which the copy-
right owner grants voluntary licenses to the Library of Congress for the repro-
duction of certain nondramatic literary works for use by the blind and physically
handicapped.
Noncommercial broadcasts to handicapped audience. — A new clause (8) has
been added to section 110 exempting the performance of a literary work on non-
commercial radio and television stations to a "print or aural handicapped
audience."
Derivative work right for sound recordings. — Section 114 has been amended to
include among the rights granted to the copyright owner of a sound recording the
right to prepare derivative works.
Criminal penalties. — Several amendments proposed by the Justice Department
were adopted. The punishment for criminal infringement of a sound recording or
motion picture copyright has been increased from one year to 3 years for tlie
first offense, and from two years to seven years for subsequent offenses, section
506(a). A new subsection has been added to section 506 adding forfeiture and
destruction of copies as possible penalties for conviction of copyright infringe-
ment, -R-ithin the discretion of the court. A new section 50f» has been added pro-
viding for possible seizure and forfeiture by the United States Government of
infringing copies or phonorecords, including articles or devices used to carry out
the criminal infringement.
Title II. — Tile Subcommittee adopted a series of changes recommended by the
Department of Commerce with respect to sections 203-206, 209, 211-213, 227, and
229 of the Design Protection Act.
3. RECOMMENDED CHANGES IN TITLE I
Several of the amendments adopted by the Senate Subcommittee on Patents,
Trademarks, and Copyrights were either recommended by the Library of Congress
and the Copyright Office, or have been endorsed by us. We specifically urge adop-
tion of the following amendments.
Prohibition against involuntary transfers. — We recommend the language
adopted by the Senate Subcommittee in section 201(e) in lieu of the present
section 104(c) of H.R. 2223. The new language is intended to establish on a
statutory basis the principle that an involuntary transfer of the copyright in-
terest will not be recognized under our law. Of course, traditional legal actions
such as bankruptcy proceedings and mortgage foreclosures are not within the
scope of the recommended language since the author has, in one way or another,
consented to these legal processes by his actions. The ])rovision is no longer di-
rected against foreigii governments since the same princii)le applies to the United
States Government. While our courts have not addressed the precise issue of in-
voluntary transfer, we believe the principle of the proposed section 201(e) would
be followed by the courts in construing the present law.
Federal pre-etnption. — We endorse the change in section 301 adopted by the
Senate Subcommittee which is intended to clarify that misiippropriation relief
may be provided under state law as long as the protection conferred is not equiv-
alent to the exclusive rights granted by the copyright law.
Single registration for several contributions to periodicals. — The basic prin-
ciple of this provision was originally siiggested by Irwin Karp. Counsel for rhe
Authors' League. The Library of Congress and the Copyright OflBce recommended
it to the Senate Subcommittee, and the provision also appears in H.R. 7140 (by
Mr. Kastenmeier), which would amend the existing title 17 U.S.C apart from the
177
effort to effect a general revision of the copyriglit law. Separate original and re-
newal term registration is a substantial financial burden on individual authors
and artists who contribute small or short works to a variety of daily newspapers
and other periodicals. The pi-oposed amendment to section 408 (c) would specif-
ically authorize the Register, without prejudice to her general authority, to
establish regulations permitting grouping of contributions by the same individual
author for registration purposes.
Fee sehedule — section 708. — The new fee schedule adopted by the Senate Sub-
committee also appears in H.R. 7149. introduced by Mr. Robert W. Kastenmeier
on May 20, 1975 at tlie request of the Library of Congress and the Coiiyright
OflBce. 'We found it necessary to propose general increases in the fee schedule iu
view of the low ratio of recovery of the costs of the copyright registration system
by cash receipts for services performed. We strongly urge inclusion of the new
fee schedule i\i H.R. 2223. We also take this opportunity to urge separate enact-
ment of H.R. 7149 without awaiting general revision of the copyright law. The
revision bill cannot become effective immediately upon enactment because of the
administrative preparation required to implement its provisions. Hence, we favor
enactment of H.R. 7149 as soon as possible.
Voluntary licenses for use of eoiryriglited works hy the hlind and physically
handicapmd — new section 710. — This provision also originated with the Library
of Congress and the Copyright Otiice, and we urge its addition to the revision
bill. It has tlie support of the American Association of Publishers.
Universal Copyright Convention. — We propose a technical amendment to sec-
tion 104(b) (2) in view of the 1971 revision of the Universal Copyright Conven-
tion. Line 25 of page 7 should read "1952 or 1971 Universal Copyright Convention ;
or".
4. GENERAL COMMENTS ON TITLE II
Design legislation has been pending before Congress even longer than the
current efforts at omnibus copyright revision. Title II of H.R. 2223, the Design
Protection Act, represents the current version of design legislation. The pro-
posal has been refined through years of study, debate, consideration, and amend-
ment. The Library of Congress and the Copyright Office have supported this
le.idslation in the past, and we reiterate our strong endorsement of the present
bill, esi)ecially since the present version appears to resolve many issues that de-
layed enactment of separate design legislation.
The Design Protection Act would create a new form of protection for designs
based' upon modified copyright principles and would bridge the gap between
existing design patent and copyright protection for ornamental designs of useful
articles. This new form of protection is needed to correct deficiencies in tlie
protection accorded by existing law. For example, although the Copyright Office
registers certain ornamental designs of useful articles which qualify as "works
ofart," it must refuse registration for numerous equally actractive or meritorious
designs, because they do not display separate work of art authorship apart from
the utilitarian aspects of the article. On the other hand, design patents are .iudged
by the high patent standards of novelty and non-obviousness. The patent is
difllcult and expensive to obtain, and most designs do not survive a court t^st.
The Design Protection Act avoids these pitfalls. It is specifically tailored to
meet the demonstrated need for protection of ornamental designs of useful
articles with due regard for the interests of consumers and their reiiresentatives.
the product retailers. The bill adopts the copyright standard of originality, but
the term of protection is short in consideration of the public interest in free com-
petition among product designs.
We accept in general the amendments adopted by the Senate Subcommittee
with respect to title IT. However, we have some hesitation about the amendment
to section 203. adding the requirement that protection may be accorded to a-
revision, adaptation, or rearrangement of design subject matter only if tlie
changes are substantial. We agree with the amendment provided the substantiality
of the revision is judged by traditional copyright standards of originality. We
would not support the change if there is any possibility that it would be con-
strued to establish a stricter standard of originality than that establislied in
section. 201 (b) (4). If the House .Tudiciary Ccmimittee adopts this language, we
recommend a clarification in the report that the amendment in no way derogates
from the section 201 (b) (4) standard of originality.
Finally, we point out that the bill presently doe? not indicate which agency will
administer the Design Protection Act. Under section 230, the Administrator will
178
be desigTiated by the President. In order to assure administrative preparation
for implementation of the Design Protection Act, the Congress may wish to
designate the Administrator directly in the bill. The Copyright Office would be
willing to assume this responsibility, as the Congress or, under the present bill,
the President directs.
Sincerely,
John G. Lorenz.
Acting Librarian of Congress.
National Aeronautics and Space Administration,
Washington, D.C., September o, 1973.
Hon. Peter W. Rodino, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, D.C.
Dear Mr. Chairman : This is in further reply to your request for the views of
the National Aeronautics and Space Administration on the bill H.R. 2223, '"For
the general revision of the Copyright Law, title 17 of the United States Code, and
for other purposes."
Title I of the bill provides for a general revision of the United States Copyright
Law. title 17 of the United States Code. Title II establishes a new type of protec-
tion for original ornamental designs of useful articles. Set forth below are com-
ments on specific provisions of the bill which would have a direct impact on
NASA's activities and liability.
TITLE I
Government Works
The proposed legislation obviates some of the ambiguities present in the current
coi)yright law with respect to Govei-nment works. Sec. 105 of the bill prohibits
copyright in any "work of the United States Government," which is defined in
Sec. 101 as "a work prepared by an officer or employee of the United States Gov-
ernment as part of his official duties." The present law prohibits copyright in a
"publication of the United States Government" (Sec. 8), but does not define the
latter term. The proposed legislation adequately reflects case law and customary
practice within the executive branch, which have established that works prepared
by Government officers or employees as part of their official duties are "Govern-
ment publications" within the copyright prohibition.
Some previous copyright revision Inlls have defined a Government work as one
prepared by an officer or employee "within the scope of his official duties or em-
ployment." The latter was considered ob.iectionable because it was ambiguous and
subject to a much broader interpretation. For example, it could be construed as
prohibiting copyright even where an officer or employee voluntarily wrote a book
on his own time which was somehow related to his employment.
Sec. 105 also clarifies the right of the Government to receive and hold copy-
rights transferred to it by assignment, bequest, or otherwise, thus obviating an-
other uncertainty in the current law.
Since H.R. 2223 abolishes common law copyright protection and extends statu-
tory copyright protection to published and unpublished works ( Sec. 104 and Sec.
301), in our view the copyright prohibition of Sec. 105 would apply to both pub-
lished and unpublished Government works as this term is defined in Sec. 101.
NASA is still of the view, expressed in comments submitted to the Committee
on previou,sly proposed legislation (e.g., H.R. 43^7, SOth Congress. 1st Session,
1965), that copyright protection should be available for Government works in
exceptional circumstances. This would give NASA the opportunity to enter into
competitive negotiations with private publishing firms in exceptional cases so that
selec-ted NASA publications could receive the widest possible distribution as re-
quired by Section 203(a) of the National Aeronautics and Space Act of 1958. The
negotiating position of the Government depends on its ability to provide copyright
protection for a period of time to the publisher in exchange for distribution and
related services. If necessary, the rights of the Government to copyright in such
exceptional eases can be limited to a shorter period of time ; for example, 5 years
(rather than the full term), which may be sufficient time for the publisher to
regain his initial publishing costs. Accordingly, it is recommended that the fol-
lowing subsection be inserted in Sec. 105 :
"In exceptional cases, copyright may be secured in a published work of the
United States Government where, because of the special nature of the work or the
circumstances of its preparation, it is determined that copyright protection would
result in more effective dissemination of the work or for other reasons would be
in the public interest. The head of the Government agency for which the work was
179
prepared shall make the determination in each case in accordance with regula-
tions established by an administrative officer designated by the President, and
shall publish a statement of the basis for its determination in each case in the
manner specified by such regulations."
It is strongly urged that Sec. 105 be amended to specify that the copyright
prohibition for Government works apply only to domestic copyright protection.
This could be done by inserting the phrase "within the United States'' after
the word "available" in line 1 of Sec. 105. It is a commonly held opinion, al-
though not established by case law, that the prohibition .against obtaining copy-
right hx the Government applies to domestic copyrights only. Thus, in this
view, the Government may copyright abroad when that serves its best interests.
While we feel that many foreign signatories to the Universal Copyright Con-
vention would honor the copyright of the U.S. Government in their respective
countries under the Convention, some nations might take the position that a
U.S. Government work cannot receive copyright protection anywhere.
Thf basic rationale for prohibiting copyi'ight protection for U.S. Government
works is that American taxpayers have paid for these works through tax assess-
ments and should have access to them free of copyright restrictions. This ra-
tionale does not require a giveaway of U.S. Government works to foreign
nationals and foreign governments. Most foreign countries provide domestic copy-
right protection for publications of their governments, and publications of
foreign governments are accepted for copyright registration in the United States,
except for statutes, court opinions, and similar official dociiments which are con-
sidered inherently uncopyrightable. Among the benefits which would accrue
from asserting copyright abroad in selected U.S. Government works are: (a)
improvements of our negotiating position with certain countries; (b) royalties
could be collected, thereby .aiding our balance of payments; (c) protection
of the integrity of U.S. Government works; and (d) greater dissemination if
American publishers were licensed to distribute U.S. Government works through
ertablis^hed distribution outlets abroad.
It is also recommended that a subsection similar to that appearing in the
current law, 17 U.S.C. 8, be inserted in Sec. 105 of H.R. 2223. that is :
"Publication or other use by the United States Government of any material
ill which copyright is existing does not impair the copyright or authorize any
further use or appropriation of the material without the consent of the copy-
right owner."
It is believed desirable to retain such a provision in the statute to provide
assurances to authors and to preclude the argument th,at deletion of this pro-
vision from the present statute implies that such protection is no longer available.
Pre-emption With Respect to Other Laws
A key provision of Title I of H.R. 2223 is Sec. 301, which would establish a
single system of statutory protection for virtually all copyrightable works
whether published or unpublished. Under Sec. 301, a work would obtain statu-
t^fry protection as soon as it is "created" or. as the term is defined in Sec. 101,
when ir is "fixed in a copy or phonorecord for the first time."
Sec. 301(b) provides that nothing in the title annuls or limits any rights or
remedies under the common law or statutes of any state that are not equivalent
to any of the exclusive rights within the general scope of copyright, such as
breaches of contract. No mention is made of Federal statiites such as the Tucker
Act, 28 U.S.C. 1491, which permits suit against the Government for breach of an
express or implied contract. Undoubtedly, it was not intended that such a
Federal statute be preempted by the copyright revision. It is recommended,
thei-pfore, for clarification purposes, that Sec. 301(b) be amended by inserting
the phrase "under Federal statutes or" after the woi'd "remedies'" on line 1.
A similar omission occurs in Sec. 117 and it is suggested that the phrase
"title 17" be replaced by "this or other title of the United States Code."
Sec. 502'^ a) provides that any court having .iurisdiction of a civil action
arising under the title may, su'bject to the prorhions of section 1498 (b) of title
28. grant in.iunctions to prevent or restrain infringement (emphasis added). It
is recommended that the phrase "subject to the provisions of" be replaced by
"except in actions against the Government under" to clailfy the exclusive
jnri.«diction of the Court of Claims under 28 U.S.C. 1498(b) .
Unpnhlished Works
28 U.S.C. 1498 (b) provides for a cause of action against the Government for
infringement of "copyright in any work protected under the copyright laws of
the United States." This waiver of sovereign immunity has been construed not
180
to embrace common law copyright, i.e., iiupnhlished works. See e.g.. Porter et al.
V. United States, 473 F 2d 1329, 117 USPQ 238 (CA 5 1973). Since H.R. 2223
protects unpuhli.shed as well as published works, the Governments liability will
be extended. It is urged that 28 U.S.C. 1498(h) be amended so that it continues
to restrict the Government's liability for copyright infringement to "published"
works only. Government agencies receive a voluminous amount of material from
private sources which does not bear a copyriglit notice and whicli is reproduced,
distributed, etc. in its day-to-day business activities, for example, under the
Freedom of Information Act. It would be extremely difficult, if not impossible,
to ascertain whether the material sulmiitted has been published with no intent
to claim copyriglit, or whether it is unpublished and the owner intends to claim
copyright protection.
Tlie effect of compliance with the Freedom of Information Act (FOIA) on
the Government's lialiility for copyright infringement also needs clariticatiou.
If a document requested under the FOIA bears a copyright notice, the requester
can be so advised and will usually be able to secure a copy elsewhere. Where
the document requested contains no copyright notice, it may be an unpublished
work sul)ject to protection under the i)roposed copyright revision ; and providing
access or a copy may very well frustrate the copyright owner's de.-;ires and
subject the Government to liability. We are concerned whether the furnishing
of a copy of a document by the Government under the FOIA will be considered
excusable, or a form of fair use. Of course, if a document is released under
FOIA, the Government may not itself restrict its use by otiiers. For clarification
purposes, it is recommended that language l>e inserted in H.R. 2223 explaining
the fair use doctrine's applicability to unpublished works and the Government's
release of documents under the FOIA.
Innocent Infringers
Under Sec. 405(b) an innocent infringer who acts in reliance upon an
authorized copy or phonorecord from which the copyright notice has been omitted,
and who proves that he was mi^;led by the omission, is shielded from liability
for actual or statutory damages with respect to any infringing acts committed
before receiving actual notice of registration. No protection is spelled out in the
proposed legislation for an innocent infringer wlio relies on an unaiithrirized
copy or plionorecord of a published work from which tlie copyriglit notice has
been omitted ; or for an innocent infringer of an unpublished work, i.e., one
who relies on a copy or phonorecord which has been published without authority
of tlie owner.
Publications Incorporating Works in the Puhlic Domain
Sec. 403 of U.K. 2223 provides that when a work is published in copies or
phcnorecords consisting preponderantly of one or more Government works, the
notice of copyright shall also include a statement identifying the portions embody-
ing work protected under Title 17. It is NASA's opinion that Sec. 403 is too
limited and that it would be in tlie public interest to recpiire such a statement
also where a work consists preponderantly of any material that is in the public
domain. We recommend that Sec. 403 be amended by adding the phrase "or works
in the public domain" after the word '"works" in the heading and before the
words "the notice" in line 3 of the body of the section.
TITLE II
Our remaining comments are directed to Title II of II.R. 2223. It is assumed:
that the word "title" in the various sections refers only to Title II dealing with
ornamental designs. It is not apparent where Title TI will appear in the United
States Code. If Title II is pl.iced under Title 17. difficulties in construction may
ensue. For example, the definitions set forth in Title I of II.R. 2223 dealing with
copyrights might be construed as being applicable to Title II also.
It is suggested that paragraph (b) of 28 U.S.C. 1-J98 be amended to include
registered designs rather thon paragrnph (a). (See Sec. 232.) The process for
cr<'ating rights in registered designs is more closely analogous to copyrights.
Furthermore, tlie specific authorization for the administrative settlement of
copyright infringement claims set forth in paragraph (b) [and not present in
paragraph (a)l would be made applicable to registered designs, which in our
opinion is highly desirable.
ISl
In the event 28 F.S.C. 1-J98fa) is amended as set forth in Sec. 232, it is recom-
mended that the phrase "descrilied In and covered by a patent of the United
.States" be inserted after the word -invention" in the first line. This will reinstate
tlie language present in the current law with respect to patented inventions and
whicJi was probably inadvertently omitted. Omitting this language might be
interpreted as a broadening of the Government's liability to cover unpatented
inventions.
Subject to the foregoing, the National Aeronautics and Space Administration
would have no objection to the enactment of H.R. 2223.
The Office of Management and Budget has advised that, from the standpoint
of the Administration's program, there is no objection to the submission of this
report to the Congress.
Sincerely,
Joseph P. Allen,
Assistant Adiii inistrator
for Legislative Affairs.
[Wliereupon, at 12 :20 p.m. the hearing adjourned to reconvene at
10 a.m. on May 11, 1971.]
COPYRIGHT LAW REVISION
WEDNESDAY, MAY 14, 1975
House of Kepresextatives,
Subcommittee ox Courts, Civil Liberties,
AND the Administration of Justice of the
Committee on the Judiciary,
Washington, D.C.
The subcommittee met. pursuant to notice, at 10:10 a.m. in room
2226, Kaj^burn House Office Building, Hon. Robert W. Kastenmeier
[chairman of the subcommittee] presidin<j.
Present: Representatives Kastenmeier, Danielson, Pattison. and
Mazzoli.
Also present: Herbert Fuchs, counsel, and Thomas E. Mooney,
associate counsel.
]Mr. Kastenmeier. The hearing will come to order on the third morn-
ing of hearings on copyright law revision. The issue under discussion
lends itself into equal division of time between those in favor and those
opposed: each side will be invited to divide 80 minutes of testimony
among its members, and you will be expected to stay within that time
frame.
This morning six national library associations have given their
entire half-hour to Mr. Edmon Low. Thereafter four representatives
of writers and publishers will share their 30 minutes in arguing the
other side of the library photocopying issue.
Furthermore, the Chair will announce that the chairman and per-
haps another member of the committee will have to excuse themselves
for the purpose of appearing before the Rules Committee on the ques-
tion of the Parole Reorganization Act this morning, and the gentleman
from California, Mr. Danielson, will preside during that period of
absence of the Chair.
Before introducing the first witness, T would like to yield to our Judi-
ciary Committee colleague from Kentucky, Mr. Mazzoli, for the intro-
duction of one of the witnesses,
]Mr. Mazzoli. ]\Ir. Chairman, thank you very much, I appreciate
your willingness to yield today. I would like to just take this chance to
introduce to you and your distinguished subcommittee a lady who is
from mv district and with whom I snend many hours on airplanes, fly-
ing back and forth from the District of Columbia to Louisville, our
home.
Mrs. Joan Titley Adams, Mr. Chairman, is testifying in your first
panel today, and without taking any more of your valuable time, I
would just like to commend her testimony because she is a professor
at the University of Louisville, as well as being the librarian of the
( 183)
184
Sciences Library. She has been in the Medical Li})rary Association in
virtually all of its positions, including the board of directors. She like-
wise holds positions in the University of Louisville on its faculty sen-
ate. And without necessarily knowino- all the nuances of the bill before
you, which is very complicated, I would like to commend her testimony.
Thank you very m.uch, Mr. Chairman.
Mr. Kastenmeier. Thank you for this introduction. I say to my col-
league I am sorry we can't introduce all our witnesses as fully in terms
of their biographies.
The Chair would like to welcome Mrs. Adams and Mr. Low. I under-
stand Mr. Low this morning will make the major presentation on behalf
of tlie liJH-aries. Mr. Low, you may want to introduce your other col-
leagues. You may proceed as you wish.
TESTIMONY OF EDMON LOW, REPEESENTATIVE OF SIX IIBRAHY
ASSOCIATIONS
Mr. Low. Thank you, Mr. Chairman. I am Edmon Low, and I will
today present the views of the American library community as repre-
sented through six major library associations. With me are representa-
tives of each of the six associations. I am happy to present to you Mr.
Julius Marke, representing the law libraries and chairman of their
copyright committee. Mr. McDonald, at my right, is the executive
director of the Association of Research Libraries. At my left, Mrs.
Adams — and Mr. Mazzoli, we share your enthusiasm for Mrs. Adams
and her work in our library community. Next is Mrs. Sommer, who is
representing the Music Library Association, and who is the chairman
of their copyright committee; and Mr. Frank McKenna, who is the
executive director of the Special Libraries Association. And then with
us we have the members of counsel, sitting behind us here, My. Sharaf,
who represents the Harvard L^niversity Library ; Mr. William North,
representing the American Library Association, and Mr. Philip
Brown, representing the Association of Research Libraries.
Mr. Kastenmeier. Thank you.
Mr. Low. Because of our time limitation, with your permission,
Mr. Chairman, I shall omit some of my testimony and ask that this
statement be admitted into the record.
Mr. Kastenmeier. Without objection, your statement in its entirety
will he received in the record. You may proceed, sir.
Mr. Low. Thank you.
We are here today to talk about library copying and the provisions
of the copyright revision bill. PI.R. 2228. I shall be presenting, so far
as I am able, the concerns of all these various library groups. However,
each of these organizations will also be filing a statement of its own,
setting forth in greater detail its individual concerns about provisions
of the bill. All of the representatives will assist me in answering
particular questions you may have concerning our testimony and the
issues raised.
Although our testimony today is limited to library photocopying
which is the subject of this hearing, there are other provisions of the
bill which concern us, and about which we may be making further
statements as other hearings are scheduled.
185
I would like first to point out tliat, although this copyright revision
bill has been under consideration for 10 years, the library photocopy-
ing issue is still an important unresolved subject. In brief, as we see
it, a question which Congress and this conunittee must decide is
wiiether libraries will be permitted — at no additional expense — to
continue to serve the public by the long-standing practice of providing
single copies of copyrighted material for users' research or study. It
IS an issue with direct and widespread impact on the general public
and involves both the right of access to library materials and the cost
of that access.
In the past year there have been two major developments affecting
this question. In the fii-st case ever brought by a publisher, the
Williams & Wilkins Co., against a library the courts have upheld the
photocopying of single copies of copyrighted medical journal articles
as being within the doctrine of fair use, and not constituting infringe-
ment of copyright. It is in part because this case consumed 7 years
and major financial outlay that libraries are concerned about the
second major development, which is the introduction last year into the
Senate bill, without any hearing, of a new and undefined limitation on
the rights of libraries ; namely, the concept of "systematic reproduc-
tion" of either single or multiple copies of copyrighted material.
Now when we talk about library copying, we are not talking about
something for the benefit of libraries or librarians, we are talking
about something that is carried on for the benefit of users of libraries
who include citizens from all walks of life throughout the coimtry.
When we are talking about library copying practices, we are talk-
ing about the schoolboy in California who may need a copy of an
article in the Los Angeles Times for a project he is working on in his
ninth-grade class ; or about a judge in the county court in Middlesex
County, Mass., who may find he needs a copy of a law review article
which bears directlj'^ upon a difficult question of law which has arisen
in the course of liis work. Or about the doctor in downstate Illinois
who has a patient with an unusual and rare disease and the only recent
material to be found is contained in an obscure journal published in
Sweden, and available only through the Regional Medical Library
system, but which article may aid him in saving his patient's life.
And we are talking about, even, a member of this committee asking
the Congressional Eeference Service of the Library of Congress for an
article dealing with copyright. Or, we are talking about a musician
who is preparing a scholarly article on the music of Mozart and needs
to take with him to study a copy of a portion of a recently edited
score of one of Mozart's works with which he is concerned.
The list is endless, but I wish to emphasize that we are talking about
an issue that very broadly affects the ability of people in this country
to make use of their libraries which are the repository and storehouse
of man's knowledge.
I should note here that copyright is not a constitutional right, such
as trial by jury of one's peers. The Constitution simply authorizes
the Congress to create such a right. It is therefore a statutory right,
one created by law, Avhich may be changed, enlarged, narrowed or
abolished altogether by the Congress here assembled. It is a law en-
acted not for the benefit of an individual or a corporation, but for
57-7SG— 7G— pt. 1 13
186
the public good and with the purpose, as the Constitution expresses
it, "to promote the progress of science and useful arts."
Consequently, in revising the copyright law the problem for Con-
gress is to design provisions which both encourage the creation of
original works and permit the widest possible access and dissemina-
tion of information to the public ; and, where these goals compete, to
strike a balance which best serves the fundamental objective of pro-
moting learning, scholarsliip, and the arts.
I should like to go on to the top of page 5. At present I am director
of the New College Library at Sarasota, Fla. New College is a small,
but very fine, private college and its problems in this connection are
typical of the two thousand small and medium-sized colleges through-
out the country. While our library is liberally supported and spends
every cent it can afford on periodical subscriptions, we cannot possibly
have the large resources of a university like the one at Gainesville
or at Tallahassee. Yet, our faculty memljers, if they maintain a good
quality of teaching and do the research which contributes to it, must
have access by random photocopying at times to the larger collections
in the State and elsewhere.
It is the general experience of the library communit}'' that inter-
library loan encourages the entering of additional subscriptions by
the library, rather than reducing the number, as is often charged by
the publishers. It is a truism that a librarian would prefer to have
a title at hand, rather than to have to borrow, even under the most
convenient circumstances. Consequently, when the time comes around
each year to consider the list of periodical subscriptions, the record
of interlibrary loans is scanned and titles are included from which
articles have been requested with some frequency during the year.
While the situation varies, in our library the number is two; if we
have had two or more requests for articles from the same title during
the year, we enter a subscription. This not only indicates how the pro-
cedure can help the periodical publishers, but also indicates that if
only one article, or none was copied from a title during a year, the
journal could not have been damaged materially in the process.
It is not only the small schools which would suffer if such photo-
copying were eliminated, however ; the scholars at Wisconsin or Michi-
gan would also be severely put to it to continue their research in the
same way, and it is these scholars who account for the major writing
for the scholarly journals. The journals tliemselves, therefore, have
a stake in seeing this procedure continued in a reasonable way.
The courts have long recognized that some reproduction of portions
of a copyrighted work for purposes of criticism, teaching, scholar-
ship or research is desirable, and this judicial concept was incor-
porated in section 107 of the revision bill. Libraries have operated
all these years under this principle, but it does lack the assurance of
freedom of liability from harassing suits. This fair use concept is
necessarily expressed in general language in section 107 of the bill.
So a librarian is not able to feel sure until a court decides a particular
case whether his actions, undertaken with the best of intentions, is
or is not an infringement.
This is pointedly illustrated by the recently decided and prior men-
tioned case of WilUams & Wilkhis. This suit was instituted in 1968 and
now, only now, after years of litigation and expenditures of many
187
thousands of dollars on eacli side, has it been determined that the
defendant was properly obeying the law after all.
Fair use, then, is not really a right to copy any given thing, but
only a defense to be invoked if one is sued. This threat of suit, even if
one is able to maintain his innocence in court, is very real because
suits are costly in proportion to the amount for which one is sued. This
revision bill provides not only for a demand for actual damages, but
also one can be sued, in extreme cases, for statutory damages up to a
limit of $50,000 for each imagined infringement. Thus, harassing but
unjustifiable suits are really invited by this provision.
In light of the above we librarians believe that in addition to sec-
tion 107, delineating fair use, further protection is needed to assure
that it is permissible to make a single copy as an aid in teaching and
research, including a single copy as part of an interlibrary loan trans-
action, and that such activity on behalf of the public good is not sub-
ject to possible suit.
Now, I want to emphasize here that in 108, the provisions that we
want to see maintained are not additions to 107 in the sense of pro-
viding further opportunity for copying, but simply a more precise
explanation of what, in relation to libraries, "fair use" means. That is,
you can be sued, regardless of whether you are guilty or not, under 107.
We would like to see the photocopying practices involving single
journal articles be permitted without threats of suits.
That assurance is now being largely provided in section 108, (a)
through (f), for which we are very appreciative. However, we are
greatly concerned with the addition of subsections 108(g) (1) and (2)
which take back the very right set forth in 108 (a) through (f) in
the most part. These are provisions which came into the bill in the
Senate after hearings were concluded in 1973, without the oppor-
tunity for discussions by library representatives with Senator Mc-
Clellan's committee. Today's hearings are the first opportunity we
have to express publicly our very deep concern.
Before discussing subsections (g) and (h), I would like to note
there is also a particular problem in the interpretation of section 108
(a) which can affect the specialized libraries in business, industry,
and commerce. This is discussed in Mr. McKenna's individual state-
ment for the Special Library Association, and he can also answer
questions in this regard.
Subsection (g) (1) gives us concern because often there is no basis —
this is one that says if an assignment was made and then people came
in, you would have to recognize whether it was isolated, or essentially
multiple copies. This gives us concern because there is no way for a
library employee to judge whether a request for a copy represents an
isolated, unrelated reproduction, as specified in 108(g)(1). For ex-
ample, if a college instructor in a graduate seminar in English were
to recommend to his students, some 10 men and women sitting around
a table, that they read an article on Milton's poetry that appeared 10
years ago in publications of the Modem LangTiage Association, and if
two of them over the next week were to go to that college's library and
look at that article and decide that they wanted to take copies back to
their dormitory for further study, we don't see how there is any prac-
tical way in which a library can prevent that kind of reproduction of
a single copy on separate occasions, and we don't think they should
188
have to. Also, we do not think that the publication will be damaged
in such a process. And yet, the Senate committee in its report on S.
1361 cites such a particular instance.
Section 108(g)(2) says that the rights of reproduction and dis-
tribution do not extend to a library which "engages in the systematic
reproduction or distribution of single or multiple copies or phono-
records of material described in subsection (d)." The materials re-
ferred to in (d) are journal articles or small portions of other copy-
righted works.
This gives us a great deal of concern because the question immedi-
ately arises as to what constitutes "systematic reproduction." To the
extent that we are able to puzzle it out, it appears to have been aimed
at practices of the kind which were upheld as fair use by the Court
of Claims in the Williams (& Wilkins case. In listening to my pub-
lisher and author friends, the preemment example which they give
of systematic reproduction has always been the regional medical li-
brary system, with the National Library of Medicine at its apex.
Those practices of the National Library of Medicine were, of course,
upheld by the Court of Claims in Williams <& Wilhins in a decision
which was affirmed this year by the U.S. Supreme Court.
Now, the rest of this page goes on describing how the regional
medical library system works, and in the interest of time I will omit
reading that. But Mrs. Adams works with this all the time and is sure
to answer any questions you may have concerning this, and also talks
about it in the particular statement she filed.
Going to the top of page 9. Another large and highly important
type of system for which this systematic reproduction poses problems
is that of the county and multicounty library systems throughout
the whole country. These libraries came into being largely through
the opportunity provided by the Federal Library Services and Con-
struction Act. This was, and still is, an effort to bring books and other
library materials to the millions of people, often in rural areas, w^ho
had not heretofore had library services available.
To get counties to join together, vote the necessary taxes, agree on
a coinmon governing board, and gain consensus on the sites for a
central library and for the smaller satellite libraries in the system
is a difficult task. It is often made possible only by the promise to the
citizens of much broader areas of information which w^ll be made
available to them not only from their small but growing collection
in each neighborhood, but also through loans from the central library
and through it from larger collections elsewhere. In this, some copying
of periodical articles is occasionally involved, but it does not result
in fewer subscriptions — in fact, before the founding of many of these
libraries, there were no periodical subscriptions at all in the area.
Because interlibrary loan is one of the vital elements in this concept
which has been so mutually beneficial to all, it is urged that no restric-
tions be imposed which would diminish the effectiveness of the pro-
gram. Such a diminution, if it occurred, would be as much against
the interest of the publishers as against the citizens the libraries serve.
I should like to give you an illustration from my home State of
Oklahoma, which I know well. I am in Florida now, but Oklahoma is
my native State. A few years ago, the Western Plains library system
was established consisting of four counties in western Oklahoma. At
189
the time of its organization, tliere was a single library in each of two
counties. The other two had no libraries. Now there are seven libraries
in the four counties and tAvo bookmobiles are operating regularly. At
the beginning, the 2 original libraries subscribed to 20 periodicals
between them. The 7 libraries now subscribe to over 300. The combined
annual book budget of the two original libraries was under $2,500;
the annual book budget for the seven is now $42,000.
In addition, they have encouraged school libraries to develop collec-
tions of periodicals and books and are now promoting with success
the creation of home collections of books and periodicals. This tre-
mendous increase in acquisition of materials has obviously benefited
the publishers of materials as well as the citizens the libraries serve.
This kind of multicounty library is now found in every State in
the Union, and over the 2 decades the Library Services and Construc-
tion Act has been in existence millions of dollars of Federal money
and matching local funds have been expended for this kind of service.
The importance of this activity was recognized in the Senate report
last summer, accompanying S. 1361, in the portion discussing sys-
tematic reproduction by saying, "The photocopying needs of such
operations as multicounty regional systems must be met," but no pro-
vision was made in the law to specifically provide for these needs.
Section 108(g) (2) would prohibit their copying activity, and I believe
would do much mischief indeed.
If I may drop to tlie last paragraph on the page. We are also con-
cerned with section 108 (li) which would limit the rights otherwise
granted under section 108 b}^ excluding a musical work, pictorial,
graphic, and other audiovisual works. These exclusions are illogical.
The need of the scholar doing research in music for a copy of a portion
of a score is as legitimate and proper as that of the scholar doing any
other kind of research. Likewise, the copying of one map from an
atlas or a page of diagrams and plans from a technical journal may
be just as important as any other kind of material for research. I will
skip the next paragraph.
Mrs. Susan Sommer of the Music Library Association is with us
today and can provide further information about the problems posed
by this section of the bill in relation to music. Dr. Frank McKenna,
of the Special Libraries Association, is also here and can discuss the
problems in relation to atlas or other graphic materials in books and
periodicals.
If I may go to the top of page 12. The paragraphs following what
I was reading describe the formation of a study group between the
libraries and the publishers to see if there were agreements we could
reach in this area of photocopying ; and we have had several meetings
in this regard.
There are, of course, different views of the significance of the work
performed to date by the conference and its working group. The work
has focused upon the mechanics and the feasibility of possible mecha-
nisms for collecting payments for photocopying of copyrighted ma-
terials. But I should like to emphasize here that there has been no
agreement as to whether such a payment mechanism is accei^table
to libraries even if it is workable, and also, I m.ay say, no seemingly
Avorkable mechanism has yet been advanced in that it still appears it
would take dollars to collect dimes. There has also been no agreement
190
as to the categories of publications to which sucli a meclianism should
be applied and no change in the position of libraries that their cur-
rent photocopying practices are entirely lawful and within the fair
use holding of the Williams & Wilkins case, and should not in any
respect be treated as infringing rights of the copyright proprietor in
the provisions of any new legislation.
I should like to point out some reasons why we think licensing and
payment of royalties by libraries for the photocopying they do is not
justified. First, many publishers already have variable pricing for
journals; that is, they charge a considerably higher price for the same
journal for a library subscription than for an individual subscription.
These prices to libraries often run quite high, subscriptions of $100 to
$300 a year are not uncormnon; a few run $1,000 or more; and the
$50 to $100 price is quite commonplace in the scientific field. These
higher subscription prices to libraries presumably are designed in
many cases to include charges for anticipated copying. Some journal
publishers have also received substantial Federal assistance in mod-
ernizing their editorial and manufacturing procedures. Other jour-
nals, and also some of those just mentioned, have already had major
contributions of public funds in the nature of per-page charges, usualh'-
in the range of $50 to $100 per printed page paid by the author or by a
Federal grant which is financing his work.
The author, on the other hand, is usually not paid by the publisher
for his work in writing the article, but the library or the institution
where tlie author is located often spends a sizable amount for inter-
library loan postage and handling to aid him in preparation of his
article which the periodical then receives without cost. As an example,
my own small library spent during this past year over $100 on inter-
library loan expense for books to enable a professor to write an article
for a historical journal, but the journal did not pay him an}' thing
for the article.
In the light of these contributions which the libraries and the
public already make to the publication of these works, it seems to us
unreasonable for journal publishers to demand still further payment
from libraries, and eventually the public, for the occasional photo-
copying of individual articles for library users. It seems even more
unreasonable in view of the fact that by making the information con-
cerned available to those with current, specific needs for it, library
photocopying fosters the basic purpose of the authors of such articles.
But when it also is noted that there is no evidence that the libraries'
policies have caused publishers any harm whatsoever, and ma;/ actually
increase their subscriptions, it is clear that such demands are completely
unjustified and the public interest requires that they be rejected by
Congress.
For the reasons we have advanced, we urge that sections 108(g)
(1), and (2), and (h) be deleted from the bill, since these sections are
taking away the advantao:es for the most part granted in 108 (a)
through (f ). This would also be in accord with the WUlimns & WiU^ins
case decision and would permit libraries to continue the long estab-
lished library service of providing a single photocopy of a single article
or excerpt from a copyrighted periodical or book for a patron's use
without incurring liability for copyright royalties.
It has been a pleasure to appear before you today, Mr. Chairman,
and I assure you that we are ready to be of assistance in any way we
191
can toward a satisfactory resolution of this very difficult but im-
portant problem to us.
Mr. Kastexmeier. Thank you, Mr. Low, for a very informative
statement, a very useful statement.
Off the record.
[Discussion off the record.]
Mr. Kastenmeier. Mr. Low, you indicated this morning that you
and your colleagues would address the question of photocopying, but
that there were a number of other provisions in the bill with which
librarians were concerned, and you would hope to testify later on those
areas; is that correct?
Mr. Low. Yes.
Mr. Kastenmeier. Will it be your panel, or will it be a different set
of witnesses wo might have with respect to other questions?
]Mr. Lev/. I think it would be this panel, but since their judgment
may have been in question for selecting me, I can't be sure that I
v.dll be speaking again.
Mr. Kastexmeier. At what point in time did the photocopying
that takes place in libraries, really originate, 10 years ago, 15 years
ago ; can you place that point in time for us ?
Mr. Low. The electrostatic photocopying — Xeroxing, as it is often
called — really came to the fore about 1960, and became widely used
in the ensuing years thereafter. However, it has not become a matter
of enough concern, apparently — I wasn't working with the committee
at that time — when testimony was taken before your committee in
1965 and 1966, along there, to have been a major problem.
It has come to the fore in recent years, particularly because there
has been a considerable amount of photocopying because of the in-
crease in the amount of recorded knowledge, and the impossibility
of any library being able to have a major portion of it ; and also because
of the information of library systems, so-called, many of which were
not desigTied for or concerned with photocopying, but were con-
cerned with promoting better library arrangements in the area of cen-
tralized cataloging, and so on.
But the creation of systems seems to have concerned particularly
our publisher friends — and we would consider the publishers our
friends because we have many things in common, much m.ore than our
differences, in spite of those differences that appear before you today.
So, we believe that these systems as yet do not pose any threats of
damage to the publishers because they were not primarily created for
the purpose of promoting photocopying in the sense of trying to get
one periodical here, and let it serve for a large group in the surround-
ing area, and discourage subscriptions by the surrounding libraries.
Mr. IC^STEisTMEiER. I take it the provisions of the bill passed by the
House in 1967, they also would not have been adequate, or at least ac-
ceptable, for libraries in terms of photocopying; is that correct?
Mr. Low. Yes. In regard to prior use, you made the statement that
you are not attempting to encourage or narrow, but simply put in legal
form, the judicial concept of fair use.
Now, particularly with the suit of Williams & WilJdns — and I don't
want to belabor that too much — where they think that some copying
is damaging their livelihood, they can bring a suit — ^that's the weak-
ness of 107 that we have been greatly concerned with since that time.
This cannot be controlled if you have a periodical publisher that felt
192
that, well, his subscriptions were diminishino; and the reason why is
very hard to determine; photocopying is often singled out and he
becomes convinced that, if it weren't for photocopying, he would be
in much better shape, so, the only thing to do is to use tlie library.
And that may not be the reason for diminishing subscriptions at all.
It may be a reduction in funds, and the library cannot afford to sub-
scribe to all the journals as in the past; and that becomes an increas-
ing problem as money for higher education is becoming more limited
these days than it was in the late 1960-s and the last few years, and
periodical subscriptions have to be discontinued.
Mr. Kastenmeier. Is it your position that photocopying does not
affect in the final analysis, in neutral terms, the number of copies that
could be sold by the publisher of a given periodical or magazine?
Mr. Low. We believe that, and in my experience over quite a long
time, I found no evidence otherwise. I would like to have Mr. INIc-
Donald, who is the director of the Association of Kesearch Libraries,
and represents the large research libraries who do more copying than
the smaller libraries, but often in response to requests that come in
from them, to comment on that, too.
Mr. McDoxALD. I would be happy to. What evidence there is sug-
gests that subscriptions are not diminished. That the practice of inter-
library loans in fact tends to advertise journals and to increase sales.
Wo know less about this than we would like to know, but we look to
Britain for a model. As you may know, the British Government has
established a national library service. The British Library Lending
Division has evidence that its loans of periodicals and photocopies of
journals promote subscriptions. Very often from the field the}- get a
request for any issue of a given journal. The obvious intent of that
request is to inspect that issue with the thought of entering a sub-
scription. They have done a little checking on this and have deter-
mined that this advertising effect has, in fact, resulted in subscriptions.
I would go on to say that our friends on the publishing side have
never really entered any evidence of economic damage. Certainly in
the Williams <& Wilkins case, no such evidence was presented.
Many libraries feel that interlibrary loan practice is a stimulus to
publication and research, and that rather than resulting in damage,
quite the opposite is true.
]\Ir. Kastenmeier. Of course, I think it could be predicted that
many publishers w-ould be sensitive because there are many publica-
tions which are, in terms of interest and specialty, very narrow in-
deed— medical publications, for example — and therefore there is a lim-
ited opportunity to develop subscriptions. And if that is in any way
diminished, it w-ould probably be terribly harmful to that publication.
But, it is difficult to judge, as you say, what the cause may be.
Now, in terms of your working group, I take it you are considering
this is an ongoing enterprise, and you are considering a number of
alternatives; one would be what the language should be in terms of
limitation of the construction of "fair use," or whether copying should
be permitted with some sort of royalty which you suggested, talking
about dollars and dimes. "Wliich would you prefer? Would you prefer a
wider, a broader availability in terms of photocopjdng with smaller
fees attached, or a somewhat more restricted statutory permission
to copy ?
193
Mr. Low. As I indicated, we feel at the present time that no fee
should be charged. Wien we started out in the working group, the
first thing we attacked was the systematic copying; that is, what con-
stituted systematic copying. And we were totally una,ble to reach
agreement on that. Some of our publishers insisted that the existence of
a union list of serials and State and regional list of periodicals that
shows where the periodicals can be located, the existence of these lists
constituted a system in itself, and consequently all interlibrary loans
became systematic and prohibited.
Others felt that at least the large research libraries which did
much copying, simply by the amount of copying they did it must be
systematic automatically'^ because of the amount they did.
I tried to point out that often this amount done by the large re-
search libraries was smaller libraries like mine turning to them for
copies of articles, and so on, which seemed that it would be acceptable
in a way. So, we were not able to reach any consensus on systematic
copying.
The work we have done on the mechanism was simply to see whether
there was any mechanism that was feasible, in case it was desirable.
IVe didn't agree that any mechanism that involved royalty payments
was desirable at this time. But we have been investigating as to whether
or not it was feasible; if Jiot, there wasn't much point in considering
further whether it was desirable or not.
We have not yet come up with a feasible mechanism that seems at
least to me Avorkable.
jNIr. Kastenmeier. One last question. In terms of the bill before
this committee, H.E. 2223, the recommendation that you make in the
language on behalf of the library users with respect to photocopying is
that sections 108(g) (1), (2), and subsection (h) be deleted from
the bill. This is the only recommendation you would make with refer-
ence to 108 ?
Mr. Low. Yes; well, we have a little concern with 108(a) (2), which
affects the Special Libraries Association in which Mr. McKenna
Mr. McKenxa. May I correct that? That is section 108(a) (1).
Mr. Low. Yes.
]\Ir. McKenna. The present language is, "The reproduction or dis-
tribution is made without any purpose of direct or indirect commercial
advantage."
Now, the question arises, what is the interpretation to be placed on
"direct or indirect commercial advantage"? The majority of the spe-
cialized libraries exist in business and commerce, and their parent orga-
nizations have a direct or indirect commercial interest and commercial
advantage, profit, or lower prices, hopefully.
It has occurred to us that the existing language of section 108 (a) (1)
may have been intended to proliibit a commercial advantage to an
unauthorized reprinter, or republisher, without thinking, or realizing
that special libraries existed in American business.
So that in the statement of the Special Libraries Association we
have recommended two possible alternatives. One is to add to the
existing words so that it will read, "Without any purpose of direct
or indirect commercial advantage to a reprinter, or republisher."
194
The alternate suggestion is that, through appropriate commen-
tary in the legislative history, it indicates that the provision is not in-
tended for special libraries.
Mr. Kastenmeier. I will now yield to the gentleman from Cali-
fornia, Mr. Danielson.
Mr. Danielson. Will you tell me, please, what procedures the li-
braries used for copying prior to the advent of the quick copying
machines ?
Mr. Low. The photographic method had been used for a long time,
dating back even prior to the first Copyright Act. It was a diifferent
photographic process, photographing the page instead of Xeroxing.
Mr. Danielson. You are talking about a large, somewhat cumber-
some photostat machine, and it made usually a white copy on black
paper.
Mr. Low. That is correct.
Mr. Danielson. And that was fairly expensive to operate, was it
not?
Mr. Low. Yes ; it was.
Mr. Danielson. And per page the product was maybe something
like 50 cents, something like that ?
Mr. Low\ Yes. And also, as a result of that and the inconvenience,
we shipped much more material, sent the whole volume.
Mr. Danielson. Just sent them the book, let them look at it, and
send it back.
Mr. Low. That's right.
Mr. Danielson. Now, under those circumstances, did you have many
complaints — I'm going to use the word in the very broad sense — from
the publishers of the journals and books ?
Mr. Low. Not that I know of. Of course, sending the material was
completely legal.
Mr. Danielson. I have a very narrow area of inquiry. You did not
have complaints at that time.
Mr. Low. No ; we did not ; I believe that's correct.
Mr. Danielson. In other words, it was the advent of the quick copy-
ing, and low-cost copying that brought on that problem.
Mr. Low. That's correct.
Mr. Danielson. You mentioned in your statement that with some
technical journals, at least, there is a different subscription rate for the
library than for, I guess you would call it, the individual subscriber.
Mr. Low. Yes.
Mr. Danielson. Would you give me some examples of that, please?
Mr. Low. I have a list of examples, but when I looked in my
folder
Mr. Danielson. Just a few off the top of your head.
Mr. Low. Well, the American Behavioral Sciences is one, I remem-
ber making the list.
]Mr. Danielson. Sir, I'm not that interested in the title, but do you
mean it's $1 for the private citizen, and $100 for the library? Give
me some examples of the difference, please.
Mr. Low. Not that spread. I went through my own libraiy, went
through the A's, and found about 40 just in the A's alone, and that is
a small collection. It is a going practice.
Mr. Danielson. Would you give me an example, please ?
195
Mr, Low. Of the price ?
Mr. Danielson. Yes, please.
Mr. Low. The price will run from $12 for the individual and $30
for the library. It's often double the individual price, to the library ;
sometimes the spread is much wider than that.
Mr. Danielson. Is that a published practice ? By that I mean, does
it appear within the publication that the subscription for a library is
three x dollars, and for the individual one and a half a?, maybe.
Mr. Low. That is correct.
Mr. Danielson. You are confident that is a prevailing practice. I see
five heads nodding affirmatively, and one is rather umnoving, here.
[Laughter.]
Mr. Low. Yes, that is an established practice.
Mr. Danielson. All right, that's good enough.
Last, on these technical journals, what is the practice in the trade
as to this one respect, are they sold by subscription exclusively, or are
they sold by subscription and also sold through retail outlets, as we
pick up a magazine at a newsstand, for example ?
;Mr. Low. Most of these are not sold, you do not find them in the
newsstand ; I believe I'm correct on that.
Mr. Danielson. Well, I used the words "retail outlets" to differen-
tiate from newsstand, because I imagine there is some place besides
newsstands where you can buy them.
Mr. Low. I don't believe you can buy them — of course you have
subscription agents where you can place your subscription, most li-
braries do in order to get the list all on one bill. But not the retail
outlets, in any way, shape, or form.
Mr. Danielson. You don't run out and get one like you get last
month's copy of — whatever.
Mr. Low. No ; you do not.
Mr. Danielson. You subscribe for a year, or a period of time.
Mr. Low. Yes.
Mr. Danielson. The gentleman on the end has a comment, please.
Mr. Marke. ;My name is ;Marke. I think it should be recognized that
many of these publications are out of print within a period of 2
months, or 3 months after the issue has been made available to the
public. So, it is not even possible to buy it through any source.
Mr. Danielson. Well, that's my third question. Once they are out
of print, the subscriptions have all been sent out through the mail,
suppose you want to pick up a copy of, let us say. May 1970 — that's
5 years ago — issue of Journal XYZ, a technical journal, where do you
get it?
Mr. Marke. It's a rare occasion when this is available through the
publisher.
Mr. Danielson. In other words, you write to the publisher, you in-
quire of the publisher, does he have a spare copy ; is that the way it
is done ?
Mr. Marke. Yes.
Mr. Danielson. The second gentleman has an answer for us. Wliat
is your name, please ?
Mr. McDonald. McDonald. Mr. Danielson, people subscribe to the
periodicals, but they have neither the space nor the money to keep and
196
bind these periodicals, except the large libraries, such as represented
by the Association of Research Libraries, which are the libraries of
record. They do assume the responsibility of keeping and binding back
jfiles of periodicals.
So, when a request comes to us, it may well come from an individual
xyr library wliich once subscribed to that periodical, paid the subscrip-
tion price, but did not choose to keep and bind it.
Mr. Danielson. Well, suppose I'm doing some research and I find
through the Library of Congress there is an article in a 4- or 5-year-
old issue of a technical journal — forget that I have access to the Li-
brary of Congress — where would I get it ?
Mr. IMarke. Well, on occasion some libraries might have accumu-
lated some extra copies in what is called the "dup. list," and librarians
very carefully go through these dup. lists — duplicate lists — to see
whether any of these issues are available through that list. But other-
wise there is no formal structure.
]Mr. Danielson. I, an individual citizen, how would I find it? I
didn't know there was a dup. list, how would I find it ?
Mr. Marke. You couldn't.
Mr. Danielson. That's the question.
I have no further questions, I yield to the gentleman from New York,
Mr. Pattison.
Mr. Pattison. Thank you, Mr. Chairman.
I might just as an aside say of the use of the word "Xeroxing," that
if the general counsel of Xerox reads that in the testimony, he will
lose whatever little hair he has left.
]Mr. Danielson. That's a real hazard. [Laughter.]
Mr. Pattison. To you, maybe. [Laughter.]
Mr. Pattison. I would like to point out a few things. You refer to the
Williams c& WiJkhu case as being "affirmed" by the Supreme Court.
In fact, the Supreme Court's was a 4-to-4 decision, I believe. I don't
believe it can be said it was "affirmed." I think then it was a 4-to-3
decision in the Circuit Court of Claims. I think that kind of indicates
the problem that we will be having, that you have. Yes, sir?
Mr. McDonald. With all respect, Mr. Pattison, I believe that the
language of the decision passed down by the court says, "By reason of
a divided court the decision of i^ao, lower court is affirmed" ; those are
the words that the Supreme Court used.
]Mr. Pattison. OK. I was trying to point out that was not one of
those decisions where reasonable men would not disagree. [Laughter.]
Like yourself, some of my best friends are publishers also. [Laughter.]
Mr. McDonald. We are trying to be very scrupulous about this and
resisted the temptation to say that the decision was "upheld" because
the Supreme Court avoided using that word itself.
]\Tr. Pattison. The thing that I see here, this whole dispute, is not
so different from that, for instance, with the CATV dispute. Every-
l)ody seems to say, we are helping the other guy more than he has been
hurt. The CATV peo]:)le said the same thing about broadcasting.
Broadcasting was delighted to have CATV out there when there was
nobody competing with them; it increased their market. Then, all of
a sudden when you get the overlapping signals, and duplication, you've
got a different thing. That kind of competing interest, I think, is well
pointed out in your statement that, indeed, there must be some sort of
197
a reasonable compromise that will probably be acceptable to no one. but
will probably be arrived at somewhere along the line, or we won't get a
bill passed at all.
I just have one minor question about your statement on page 12. You
referred to something that I'm not familiar with, and I'm just curious
about it, where it says, "Some journal publishers have received sub-
stantial Federal assistance in modernizing their editorial and manu-
facturing procedures," and I don't know what you are referring to
there ; I'm just curious as to what that is.
]\Ir. Low. John, would you care to comment on that ?
Mr. ]McDoNALD. I'll try, but I believe Mr. McKenna knows more
about it than I. Many of the scholarly societies, the American Chemical
Society, have had assistance from Federal agencies, such as the Xa-
tional Science Foundation, in one or another of their pursuits. The
nature and extent of these subsidies is not something I am an expert
on by any means, but there are further subsidies that might be cited.
Often the authors who publish in these journals have conducted
their research with Federal support. As ]Mr. Low's testimony points
out. the publishers are paid page charges to get this information dis-
tributed through these periodicals. The subscription prices themselves
liave risen, I believe, in excess of the cost of living. So, it seems that
these subscriptions have been bought and paid for quite adequately,
and the notion of some further charge, or surcharge in the form of a
royalty or licensing payment, I think, would be excessive.
Mr. Low. I believe Mr. McKenna has some additional examples.
Mr. McKenna. Mr. McDonald mentioned professional societies. I am
aware of subsidies that have been paid by the National Science Founda-
tion to a commercial publisher to acquire cold typesetting equipment,
so that he has been able to establish a relatively large printing plant, on
the basis that his publications were of national interest, covered
translations of Soviet periodicals.
Mr. Pattison. I see. The other item that I think will be examined
by us further is that by other testimony I know that in the Willia7ns
& WilMns case, that firm has developed statistics, demonstrating —
to the extent it can be demonstrated, it is obviously so full of other
factors that it is difficult to demonstrate — demonstrating a loss of
subscriptions.
That is a point of dispute, whether they lose, or don't lose. But if
in fact the publishers were convinced that they didn't lose, and if
in fact they were convinced that they increased their subscriptions,
we wouldn't be having this discussion right now. So, I think that
probably is a point of dispute and something I would like to hear
some more about.
Mrs. Adams. May I speak to that, sir ?
Mr. Pattison. Certainly.
Mrs. Adams. I am a medical librarian. We were very much in-
volved in this suit. If you notice the rate of increased numbers of
subcriptions from the early 1960's up to, say, 1969 or 1970, this is
during the period, as was mentioned, when the rapid, efficient repro-
duction of materials became available, you will see that there was a
constant rise in the number of subscriptions that were taken by pub-
lishers, including Williams & Wilkins.
198
So, from the period, say, of the late 1960's to now, there has been
a definite decline. My own library has had to cut back on subscrip-
tions, and that has nothmg to do with the photocopies, it is simply
a reality of frozen budgets within universities, and having to examine
highly specialized journals ; it has nothing to do with photocopying.
Our i3liotocopying has increased because of our involvement with
the regional medical library program. That supplies copies of highly
specialized articles to physicians and health professionals in rural
areas, some 50 to 150 miles from us, and we supplied over 600 items
in just 1 year. There is no way that they could, in their small hos-
pital libraries, have such collections.
But the answer goes back to, there is a correlation between decreas-
ing amounts of money available to education and research, and the
decrease in number of subscriptions. We don't find that relates to
photocopies.
Mr. Danielson. Which of course demonstrates the difficulty of the
problem. If you convince the publishers of that, we will have no
I)roblem.
Mrs. Adams. We have been trying.
Mr. Marke. You may recall that the Court of Claims actually stated
in its opinion that there was inadequate reason to believe that it — ^the
publisher — was being harmed specifically
Mr. Pattison. I'm aware of that holding. The figures that have been
developed by Williams & Wilkins are quite extensive, since that time.
Mr. Low. I wanted to say, in regard to saying the publishers felt
they would be for the copying if they felt it would increase their
publications, I feel that the copying now is not affecting the number
of subscriptions, and I think they pretty much realize that too.
I think they are concerned about what may come in the future — ■
without putting words in their mouths — ^but we found that in discus-
sion with them. Here it has been now over 60 years since we have had
a copyright law; they see systems increasing, networks being estab-
lished
Mr. Danielson. I would like to urge that we conclude expedi-
tiously, we have four more witnesses. I don't want to cut you off, but
could you make your answers as precise as possible ?
Mr.' Pattison. I think I miderstand that problem. I think I can
understand, and I am sure you can, too, some of the concerns the
publishers may have. If in fact people do decide that there is no pro*
tection at all, then all the lawyers in the town can get together, for
instance, and subscribe to the lejral journals and iust send them around.
I'm not saying that lawyers could ever agree to that, they can't
agree on anything, but that kind of thing could happen. I suppose
that is the answer, the prospective problem is worse than the current
one.
Mr. Marke. I'm sorry, just in this context, there is also an obliga-
tion on the publishers, perhaps, to change their practices, they haven't
been changed since Gutenberg. They ought to look into this area and
see what they can provide in the way of services, which would increase
their profit as well. We want to cooperate with them, we want to give
them every opportunity to make a profit.
Mr. Pattisoist. That is a very good point.
199
Mr. Danielson. Will someone give me a very concise definition of
"page charges", what are they, and who pays them to whom ?
Mrs. Adams. Authors pay publishers of scientific and technical jour-
nals. These charges are based on the length of the article.
Mr. Daneelson. In other words, if I have written a scintillating
article on something I must pay the publisher to have it published.
Mrs. Adams. That's right.
Mr. Danielson. Thank you.
Thank you, ladies and gentlemen for a very informative discussion
here. We will move along rather quickly because we have four more
witnesses who will, I know, help us solve tliis simple little problem.
[The prepared statement of Edmon Low is as follows :]
Statement of Edmon Low, Representing American Association of Law Li-
braries, American Library Association, Association of Research Libraries,
Medical Library Association, Music Library Association, Special Libraries
Association
I am Edmon Low, Director of the Library of New College, Sarasota, Florida.
Today I will present the views of the American library community as represented
through six major library associations. With me are representatives of each
of the six associations, and three attorneys. These individuals are here to
answer questions of particular concern to the members of their associations,
if Members of the Subcommittee so desire.
I am happy to introduce them to the Subcommittee at this time. The in-
dividuals at the witness table are from my right (the Committee's left),
American Association of Law Librarians, Julius J. Marke, Chairman of the
AALL Copyright Committee; Association of Research Libraries, John P. Mc-
Donald, Executive Director. Sitting behind Mr. McDonald is the ARL counsel,
Philip B. Brown of the law firm Cox, Langford, and Brown, Washington, D.C. ;
American Library Association — I am representing ALA as Chairman of its Copy-
right Subcommittee, as well as presenting the unified testimony. Sitting behind
me is the ALA counsel, William D. North of Kirkland and Ellis law firm in
Chicago ; Medical Library Association — Mrs. Joan Titley Adams, Chairman of the
MLA Copyright Committee; Music Library Association, Mrs. Susan Sommer, a
member of the Association's Board of Directors and Chairman of its Copyright
Subcommittee ; Special Libraries Association — Dr. Frank E. McKenna, Execu-
tive Director. Sitting behind Dr. McKenna is James A. Sharaf, Counsel of the
Harvard University Library.
We are here today to talk about library copying and the provisions of the
copyright revision bill (H.R. 2223). Because our time for presentation of testi-
mony is very limited, I shall be presenting so far as I am able in the time allotted
the concerns of all these various groups. However, each of these organizations
will also be filing a statement of its own setting forth in greater detail its indi-
vidual concerns about provisions of the bill, and all of these representatives will
assist me in answering particular questions you may have concerning our tes-
timony and the issues raised. Although our testimony today is limited to library
photocopying which is the subject of this hearing, there are other provisions of
the bill which concern us and about which we may be making further statements
as other hearings are scheduled.
I would like first to point out that, although this copyright revision bill has
been under consideration for ten years, the library photocopying issue is still r.n
important unresolved subject. In brief, the question which Congress must decide
is whether libraries wiU be permitted — at no additional expense — to continue
to serve the public by the long-standing practice of providing single copies of
copyrighted material for a user's research or study. It is an issue with direct and
widespread impact on the general public. It involves both the right of access to
library materials and the cost of that access.
In the past year there have been two major developments affecting this ques-
tion. In the first case ever brought by a publisher, the Williams & Wilkins Com-
pany, the courts have upheld the photocopying of single copies of copyrighted
medical journal articles as being within the doctrine of fair use and not consti-
200
tuting infringement of copyriglit. It is in part because this case consumed seven
years and major financial outlay that libraries are concerned about the second
major development, which is the introduction last year into the Senate bill,
without any hearing, of a new and undefined limitation on the rights of libraries,
namely, the concept of "systematic reproduction" of either single or multiple
copies of copyrighted material.
Now, when we talk about library copying we are not talking about something
for the benefit of libraries or librarians, we are talking about something that
is carried on for the benefit of users of libraries who include citizens from all
walks of life throughout the country. When we talk about library copying prac-
tices, we are talking about the schoolboy in Caliiornia who may need a copy
of an article in the Los Angeles Times for a project he is working on in his
ninth-grade class ; we are talking about a judge in a county court in Middlesex
County, Massachusetts, who may find he needs a copy of a law review article
which" bears directly upon a difficult question of law which has arisen in the
course of his work ; we are talking about a doctor in downstate Illinois who
has a patient with an unusual and rare disease and the only recent material to
be found is contained in an obscure journal published in Sweden and available
only through the Regional Medical Library System, but which article may aid
hiiu in saving his patient's life ; we are talking about a Member of this Com-
mittee asking the Congressional Reference Service of the Library of Congress
for an article dealing with copyright ; and we are talking about a musician who
is preparing a scholarly article on the music of Mozart and needs to take with
him to his study a copy of a portion of a recently edited score of one of Mozart's
works with which he is concerned. The list is endless, but I wish to emphasize
that we are talking about an issue that very broadly afiiects the ability of people
in this country to make use of their libraries which are the repository and store-
house of man's knowledge.
It should be noted here that copyright is not a constitutional right, such as
trial by jury of one's peers. The Constitution simply authorizes Congi-ess to
create the right. It is therefore a statutory right — one created by law- — and may
be changed, enlai'ged, narrowed, or abolished altogether by the Congress here
assembled. It is a law enacted not for the benefit of an individual or a corpor-
ation but for the public good and with the purpose, as the Constitution expresses
it, "to promote the progress of science and useful arts." Consequently, in revis-
ing the copyright law the problem for Congress is to design provisions which
both encourage the creation of original works and permit the widest possible
access to and dissemination of information to the public ; and, where these goals
compete, to strike a balance which best serves the fundamental objective of
promoting learning, scholarship, and the arts.
It is now generally understood that a single collection of books or other re-
corded forms of thought as represented by any library can contain only a fraction
of the total amount of material in existence. Even the Library of Congress, pos-
sibly the largest single collection of materials in the world, does not have many
thousands of titles which exist in the United States, to say nothing of those else-
where in the world, while on the other hand even a relatively small library will
often have titles not found anywhere else in the country. The location and cata-
loging of these titles, and of articles and journals, and the making of some avail-
able readily through photocopying or loan — the dissemination of knowledge — is
indispensable to education and research and often involves the re])rodnction by
photocopying of a portion of a monograph or a journal article protected by copy-
right.
Library photocopying may be roughly divided into two groups, the first being
that done either by a member of a library staff or by the user himself from
material in the library for immediate use on the premises or nearby ; the second.
th.Tt done by one library for and at the request of another library, often some
distance away, for use by one of its patrons there. The first is oft^n designated
"in-bouse'' copying, while the second we usually refer to as "'interlibrary loan."
The first is often necessary if a patron is to compare and study several'articles
from large bound reference volumes as for instance a student writins a term
paper in the lilu-ary. The second is of vital impoi-tance in that the scholar or
other user does not have the document in hand and therefore it is his only prac-
tical access to what may be highly important material for information or re-
search.
At present I am Director of the New College Library at Sarasota, Florida. New
College is a small, but very fine, frivate college and its problems in this con-
201
nectioD are typical of the two thousand small and medium-sized colleges through-
out the country. While our library is liberally supported and spends every cent
it can afford on periodical subscriptions, we cannot possibly have the large re-
sources of a university like the one at Gainesville or at Tallahassee. Yet our
faculty members, if they maintain a good quality of teaching and do the research
which contributes to it, must have access by random photocopying at times to
the larger collections in the state and elsewhere.
It is usually not known that the interlibrary loan arrangement often encour-
ages the entering of additional subscriptions by the library rather than reducing
the number as is often charged. It is a truism that a librarian would prefer to
have a title at hand rather than to have to borrow even under the most con-
venient circumstances. Consequently, when the time comes around each year to
consider the list of periodical subscriptions, the record of interlibrary loans is
scanned and titles are included from v.-hich articles have been requested with
some frequency during the year. While the situation varies, in our library the
number is two ; if we have had two or more requests for articles from the same
title during the year, we enter a subscription. This not only indicates how the
procedure can help the periodical publishers, but also indicates that if only one
article or none was copied from a title during a year, the joiirnal could not have
been damaged materially in the process. It is not only the small schools which
would suffer if such photocopying were eliminated, however; the scholars at
Wisconsin or Michigan would also be severely put to it to continue their research
in the same way, and it is these scholars who account for the major writing for
the scholarly journals. The journals themselves, therefore, have a stake in seeing
tliis procedure continued in a i*easonable way.
Courts have long recognized that some reproduction of portions of a copyrighted
work for purposes of criticism, teaching, scholarship or research is desir-
able and this judicial concept, known as "fair use," is incorporated in sec-
tion 107 of the revision bill. Libraries have operated all these years under this
principle, but it does lack the assurance of freedom of liability from harassing
suits which the librarian needs in his work. This fair use concept is necessarily
expressed in general language in tJie bill, so a librarian will not be able to be sure,
until a court decides a particular case, whether his action, undertaken with the
best of intentions to aid a patron, is or is not an infringement. This is pointedly
illustrated by the recently decided, previously mentioned case of Williams «&
Wilkins vs. the National Library of Medicine and the National Institutes of
Health for photocopying. This suit was instituted in 1968 and only now after years
of litigation and expenditures of many thousands of dollars on each side has
it been determined that the defendants were properly obeying the law after all.
Fair use, then, is not really a right to copy any given thing, but only a defense
to be invoked if one is sued. This threat of suit, even if one is able to maintain
his innocence in court, is very real because suits are costly in proportion to the
amount for which one is sued. This revision bill provides not only for demand for
actual damages, but also one can be sued for statutory damages up to limit of
$50,000 for each imagined infringement. Thus, harassing but unjustifiable suits
are really invited by this bill.
In light of the above, we librarians believe that In addition to Section 107
delineating fair use, further protection is needed to assure that it is permissible
to make a single copy as an aid in teaching and research, including a single copy
as part of an interlibrary loan transaction, and that such activity, in behalf of
the public good, is not subject to possible suit. This assurance has now been
largely provided in parts of section 108 (a) through (f), for which we are very
appreciative. However, we are greatly concerned with the addition of subsections
108 (g) (1) and (2), and (h), which take back the very rights set forth in 108
(a) through (f). These are provisions which came into the bill in the Senate
after hearings were concluded in 1973, without the opportunity for discussion by
library representatives with Senator McClellan's Subcommittee. Today's hearings
are the first opportunity we have had to express publicly our very deep concern.
Before discussing subsections (g) and (h), I would like to note tliere is also a
particular problem in the interpretation of section 108(a) which can affect
specialized libraries in business, industry, and commerce. This is discussed in the
individual statement of the Special Libraries Association.
Subsection (g) (1) gives us concern because often there is no basis for a library
employee to judge whether a request for a copy represents "isolated and unrelated
reproduction" as specified in sec. 108(g)(1). For example, if a college in-
structor in a graduate seminar in Englisli were to recommend to his students,
57-786— 76— pt. 1 14
202
some ten men and women sitting around a table, that they read an article on
Milton's poetry that appeared ten years ago in Publications of the Modern
Language Association, and if two of them over the next week were to go to that
college's library and look at that article and decide that they wanted to take
copies back to their dormitory for further study, we don't see how there is any
practical way in which a library can prevent that kind of reproduction of a single
copy on separate occasions, and we don't think they should have to. And yet, the
Senate Committee report on S. 1361 (S. Rept. 93-983) cites such an instance.
Section 108(g) (2) says that the rights of reproduction and distribution do not
extend to a library which "engages in the systematic reproduction or distribution
of single or multiple copies or phonorecords of material described in subsection
(d)." The materials referred to in (d) are journal articles or small portions of
other copyrighted works.
The question immediately arises as to what constitutes systematic reproduc-
tion. To the extent that we are able to puzzle it out, it appears to have been
aimed at practices of the kind which were upheld as fair use by the Court of
Claims in the Williams d Wilkins case. In listening to my publisher and author
friends, the preeminent example which they give of systematic reproduction has
always been the Regional Medical Library System, with the National Library of
Medicine at its apex. Those practices of the National Library of Medicine were,
of course, upheld by the Court of Claims in Williams d Wilkins in a decision
which was affirmed this year by the United States Supreme Court.
Now, how does the Regional Medical Library system really work? Well, it
starts oft with the user, who discovers that he needs access to some particular
information, often found in an article in a professional journal in the biomedical
field. He usually starts off by going to the library in the hospital with which his
practice is affiliated, and may find it there. If it is one of the most important
journals, the hospital may well have it. But, since there are thousands of journals
in the medical and health sciences field, the chances are that the hospital library
may not have this, particularly if it is older material. The request would then go
to one of the eleven Regional Medical Libraries over the country which are sup-
ported by Congress, and from there as a last resort to the top of the pyramid
which is the National Library of Medicine and which now has over 25,000 differ-
ent journals, the biggest medical collection in the world. It is obviously not pos-
sible for the smaller hospital library, or sometimes even the Regional Medical
Library, to have a sizable portion of this vast amount of material, so some kind of
access, such as photocopying, must be relied upon to get the information to the
doctor or the other health professional when urgently needed. This kind of orga-
nization of access to scientific and technical knowledge seems to us to be the
intelligent way of doing things. It should be noted also that the Regional Medi-
cal Libraries are not only striving to augment their collections as rapidly as
possible but likewise are urging the smaller hospital libraries to upgrade theirs,
thus providing all along the line an ever-increasing number of subscriptions
with accompanying increased financial gain for the publishers. Mrs. Joan Titley
Adams, of the Medical Library Association, who is with us here today, can pro-
vide for any of the Committee members who are interested further details about
this highly significant work in the medical and health fields.
Another large and highly important type of system for which this systematic
reproduction poses problems is that of the county and multi-county library sys-
tems throughout the whole country. These libraries came into being largely
through the opportunity provided by the federal Library Services and Construc-
tion Act. This was and still is an effort to bring books and other library materials
to the millions of people, often in rural areas, who had not heretofore had library
service available. To get counties to join together, vote the necessary taxes, agree
on a common governing board, and gain consensus on the sites for a central li-
brary and for the smaller satellite libraries in the system is a diflScult task. It is
often made possible only by the promise to the citizens of much broader areas of
information which will be made available to them not only from their small but
growing collection in each neighborhood, but also through loans from the central
library and through it from larger collections elsewhere. In this, some copying of
periodical articles is occasionally involved, but it does not result in fewer sub-
scriptions— in fact, before the founding of many of these libraries there were no
periodical subscriptions at all in the area.
Because interlibrary loan is one of the vital elements in this concept which
has been so mutually beneficial to all, it is urgent that no restrictions be imposed
203
which would diminish the effectiveness of the program. Such a diminution, if
it occurred, would be as much against the interest of the publishers as against the
citizens the libraries serve. Let me give you an illustration from my home state of
Oklahoma which I know well. A few years ago, the Western Plains Library
System was established consisting of four counties in Western Oklahoma. At the
time of its organization, there was a single library in each of two counties. The
other two had no libraries. Now there are seven libraries in the four counties
and two bookmobiles are operating regularly. At the beginning the two original
libraries subscribed to 20 periodicals between them. The seven libraries now
subscribe to over 300. The combined annual book budget of the two original
libraries was under $2500. The annual book budget for the seven is now $42,000.
In addition, they have encouraged school libraries to develop collections of peri-
odicals and books and are now promoting with success the creation of home col-
lections of books and periodicals. This tremendous increase in acquisition of
materials has obviously benefited the publishers of materials as well as the
citizens the libraries serve.
This kind of multi-county library is now found in every State in the Union,
and over the two decades the Library Services and Construction Act has been in
existence millions of dollars of federal money and matching local funds have
been expended for this kind of service. The importance of this activity was
recognized in the Senate report last summer accompanying S. 1361 (S. Rept.
93-9S3) in the portion discussing systematic reproduction by saying, "The photo-
copying needs of such operations as multi-county regional systems must be met,"
but' no provision was made in the law to specifically provide for these needs.
Section 108(g) (2) would prohibit their copying activity and do much mischief
indeed.
It was also pointed out to our publisher friends that many systems are not
organized for the purpose of copying materials of any kind. For example, one of
the large "systems" is SOLINET, an acronym for Southeastern Library Net-
work. This is a group of about 100 libraries in the Southeastern States devoted
solely to providing centralized cataloging and catalog card preparation and dis-
tribution to member libraries. Other systems have the purpose of encouraging
the building of better library collections and the bringing to the area more jour-
nals, sets and bibliographies not now represented in the areas. To say that a
library merely because it happens to belong to such a "system" is prohibited
from photocopying where if it did not belong, it would be permitted to do so,
seems to us farfetched indeed.
We are also concerned with section 108(h) which would limit the rights other-
wise granted under section 108 by excluding a musical work, pictorial, graphic
and other audiovisual works. These exclusions are illogical. The need of the
scholar doing research in music for a copy of a portion of a score is as legitimate
and proper as that of the scholar doing any other kind of research. Likewise, the
copying of one map from an atlas or a page of diagrams and plans from a tech-
nical journal may be just as important as any other kind of material for
research.
It seems to us that libraries ought to be encouraged to collect and preserve all
of the forms in which knowledge is published and distributed, and that it should
be possible for users of libraries to have access for their study and scholarship
to all of these forms, not just some of them. If a student of the cinema asks a
library to make a copy for him of a few selected frames of some famous motion
picture which is being studied, so that he may consider at his leisure a certain
key point which is made in an article he is reading, we think the library ought to
be able to do that.
Mrs. Susan Sommer of the Music Library Association is with us today and
can provide further information about the problems posed by this section of the
bill in relation to music. Dr. Frank McKenna, of the Special Libraries Associa-
tion, is also here and can discuss the problems in relation to atlas or other graphic
materials in books and periodicals.
In reporting S. 1361 last July, the Senate Judiciary Committee recommended
that "representatives of authors, book, and periodical publishers and other owners
of coprighted material meet with the library community to formulate photo-
copying guidelines to assist library patrons and employees." And concerning
library photocopying practices not authorized by the reported bill, the Committee
recommended "that workable clearance and licensing procedures be developed."
In response to this request by the Senate Judiciary Committee, representatives
204
of the different views on this subject were convened in November 1974 by invita-
tion of the Register of Coyprights and the Chairman of the National Commission
on Libraries and Information Science. The resulting "Conference on Resolution of
Copyright Issues" established a smaller working group to carry out preliminary
discussions. The working group and several subcommittees have since met on
frequent occasions to consider and prepare papers on a variety of technical and
procedural matters.
There are, of course, different views of the significance of the work performed
to date by the Conference and its working group. The work has focused upon the
mechanics and the feasibility of possible mechanisms for collecting payments
for photocopying of copyrighted materials. It must be emphasized, however, that
there has been no agreement as to whether such a payment mechanism is accepta-
ble to libraries even if it is workable, and also I may say no seemingly workable
mechanism has yet been advanced in that it still appears it would take dollars
to collect dimes. There has also been no agreement as to the categories of pub-
lications to which such a mechanism should be applied and no change in the posi-
tion of libraries that their current photocopying practices are entirely lawful and
within the fair use holding of the Williams & Wilkins case, and should not in any
respect be treated as infringing rights of the copyright proprietor in the provisions
of any new legislation.
The publishers will probably tell you that they, too, are for photocopying but
they want money for it without any outlay or trouble on their part. I should like
to point out some reasons why licensing and payment of royalties by libraries for
the photocopying they do is not justified. First, many publishers already have
variable pricing for journals ; that is, they charge a considerably higher price
for the same journal for a library subscription than for an individual subscription.
These prices to libraries often run quite high — subscriptions of $100 to $300 per
year are not uncommon ; a few run $1,000 or more ; and the $50 to $100 price is
quite commonplace in the scientific field. These higher subscription prices to
libraries presumably are designed in many cases to include charges for antici-
pated copying. ,Some journal publishers have received substantial federal assist-
ance in modernizing their editorial and manufacturing procedures. Other journals,
and also some of those just mentioned, have already had major contributions of
public funds in the nature of per-page charges, usually in the range of $50 to
$100 per printed page paid by the author or by a federal grant which is financing
his work. The author is usually not paid by the publisher for his work in writing
the article but the library or the institution where the author is located often
spends a sizable amount for interlibrary loan postage and handling to aid him in
preparation of his article which the periodical then receives without cost. As an
example, my own small library spent during this past year over $100 on inter-
library loan expense for books to enable a professor to write an article for an
historical journal, but the journal did not pay him anything for the article.
In light of these contributions which the libraries and the public already
make to the publication of these works, it seems unreasonable for journal
publishers to demand still further payment from libraries, and eventually the
public, for the occasional photocopying of individual articles for library users.
It seems even more unreasonable in view of the fact that by making the infor-
mation concerned available to those with current, specific needs for it. library
photocopying fosters the basic purpose of the authors of such articles. But when
it is also noted that there is no evidence that the libraries' policies have caused
publishers any harm whatsoever and may actually increase their subscriptions,
it is clear that such demands are completely unjustified and the public interest
requires that they be rejected by Congress.
For the reasons we have advanced above, we urge that sections 108(g) (1)
and (2) and (h) be deleted from the bill. This would also be in accord with the
Williams & Wilkins decision and would permit libraries to continue the long
established library service of providing a single photocopy of a single article
or excerpt from a copyrighted periodical or book for a patron's use without
incurring liability for copyright royalties.
It has been a pleasure to appear before you today, Mr. Chairman, and I assure
you that we are ready to be of assistance in any way we can toward a satisfactory
resolution of this very difficult but important problem.
[The following prepared statements and correspondence were re-
ceived for the record :]
205
Statemea^t of John P. McDonald, Executive Director, Association of
Research Libraries
The Association of Research Libraries, an organization of the principal uni-
versity and research libraries in the country, believes that the copyright revision
liill ultimately approved by the Courts, Civil Liberties and the Administration
of Justice Subcommittee must include provisions which will ensure that the
customary, long-established library service of providing a single photocopy of a
single article or excerpt from a copyrighted periodical or book for a patron's
private use may be continued without incurring liability for copyright royalties.
The bill adopted by the Senate last year, and reintroduced in the 94th Con-
gress as H.R. 2223, gives explicit recognition to and protection for library photo-
copying. However, that bill also incorporates provisions in Section 108 (g) which
encumber and confuse the expressly recognized right to an extent that would
severely hamper libraries' service to the public and exclude practices which are
presently lawful. It is imperative that the bill be amended to restore to libraries
and the public the rights which they presently enjoy to make limited photocopies
of copyrighted works. Section 108(g) (2) should be removed from the bill because :
1. It restricts practices which are reasonable, customary and lawful under the
decision in the Williams & Wilkins case. 2. Copyright owners {e.g., publishers)
have advanced no evidence showing that such practices in any way injure their
economic interests, much less evidence that it is in the public interest to forbid
them. 3. The cost of the libraries and ultimately the public of prohibiting or
imposing a royalty requirement upon such practices will be extremely high.
4. The primary purpose of the authors of the sorts of articles most frequently
copied is to disseminate the results of their research, not to earn royalties.
At issue is the making, whether at the request of a patron or at the request
of another library, of single copies of copyrighted matter for the private use of
a scholar or other reader. Such copies may be of articles from law reviews, medi-
cal journals or scientific or technical periodicals, or they may be passages from
other published works. They are made in response to individual requests for
single copies, although more than one individual may request a copy of a par-
ticular part of a work in a library's collection. In providing this service, a library
may make a copy from a work located on its premises, or in the case of a work
not in its own collection, it may request the copy from another library, just as
it might obtain the original work itself on an inter-library loan for a patron who
wished to borrow it. The right to make a single copy for personal use is im-
portant to a wide variety of scholars and other library users, from the high
school student who wants a copy of an article in a issue of a magazine for a
debate or science project to the physician requiring the material for research
work or patient care. In the overwhelming number of cases it is the only way in
which a researcher can obtain a copy of an article from a issue of a periodical
for reference.
Both libraries and the public have traditionally considered the making of
such copies to be a natural and necessary part of libraries' services to their
users. It is simply one way in which published material is made accessible. Such
copies have been "made by photographic and other reprographic techniques since
before the enactment of the 1909 Copyright Act. No court has ever held that
these traditional practices result in liability under the copyright law, and in
the test case brought by publishers, WilUatns d Wilkins v. United States, the
U.S. Court of Claims held that the libraries' practices were a fair use of the
pul)lished materials. That holding was recently affirmed by the United States
Supreme Court.
It is vital that the copyright revision bill recognize the right of libraries to
make single photocopies of works for the private use of patrons without incur-
ring liability under the copyright law. Although Williams & Wilkins is authority
that traditional library photocopying is within the doctrine of "fair use", express
statutory treatment is necessary to remove the threat of suit against libraries
ari.sing from varying judicial interpretations of what is or is not "fair use".
Failure to include such provisions would abandon this area of major public inter-
est to judicial "legislation", and could lead to further costly litigation.
Section 108 of H.R. 2223 extends the necessary recognition, but limitations writ-
fen into its provisions, principally in Subsection 108(g) — and particularly clause
(2) of that subsection — seriously erode the rights which it intends to recognize.
Claiiise (g)(2) excludes from the library photocopying permitted under Sec-
tion 108 any instance of "systematic reproduction and distribution". Because this
restriction was written into the bill by the Senate Patents, Trademarks and
206
Copyrights Subcommittee at the last minute (after public hearings had been held)
and is only vaguely and confusingly explained in the committee report, it is impos-
sible to determine exactly what it means. Such cursory explanation of the limita-
tion as was offered by publishing interests before this Subcommittee seems to
confuse it with "related or concerted" reproduction — which is separately treated
by Section 108(g) (1) of the bill — and merely disguises the real import of the
restriction. It appears, however, to be potentially applicable whenever a library
makes a photocopy of an article or other portion of a published work in the con-
text of a "system". There are, of course, many such systems of libraries, from
city or county branch library systems to the university with branch campuses
to regional library consortia. When it applies. Section 108(g)(2) would reach
the making of a single copy for a single requester, of any part, however small, of
a copyrighted work. It is precisely the right to make such copies which Section
108 was intended to confirm.
The Senate Judiciary Committee report states that systematic reproduction or
distribution within the intent of Subsection 108(g) (2) occurs "when a library
makes copies of such materials available to other libraries or groups of users
under formal or informal arrangements whose purpose or effect is to have the
reproducing library serve as their source of such material." An example which
seems to fit this description would be arrangements under which the Legislative
Research Service of the Library of Congress provides copies of materials, such
as articles from economic or business periodicals, at the request of Members of
Congress. An example listed by the Senate committee's report is the case in which
a branch of a library system obtains at a user's request a copy of an article which
it does not carry in its own collection. The example most frequently cited by
publishers is the regional medical library system, by which local hospital and
medical school libraries have access upon request to seldom-read and highly
specialized periodicals carried by regional medical libraries or the National Li-
brary of Medicine. Each of these examples involves practices which are tradi-
tional and obviously reasonable. Just such photocopying practices of the NLM
were at issue in the Williams & Wilkins case and were held to be lawful.
The sole rationale offered for the new restrictions is an assertion that they are
necessary in order to prevent present and potential subscribers from relying on
library photocopying machines in the place of journal subscriptions. That asser-
tion is simply and clearly not valid. The argument has a certain surface plausibil-
ity, but in spite of the many opportunities presented to them, notably in the
Williams & Wilkins case and most recently at the hearings before this Subcom-
mittee, publishing interests have never offered any evidence to substantiate their
claims of damage or to show that their fears for the future have any basis in
fact within the context of the limited library photocopying which would be recog-
nized under subsections (a) through (f) of Section 108. In Williams & Wilkins
such an inference of injury mistakenly indulged in by the presiding Commissioner
was overruled by the Court of Claims which held instead that "this record . . .
fails to show a significant detriment to plaintiff but does demonstrate injury to
medical and scientific research if photocopying of this kind is held unlawful."
The publishers' reference to practices by the University Microfilms subsidiary of
the Xerox Corporation has no relevance to library photocopying, and the firm's
profit-making (and royalty-paying) enterprise geared to the reprinting of multiple
copies of articles and entire journal issues would clearly be outside the provisions
of Section 108 in the absence of Subsection 108(g).
What evidence is available strongly suggests that traditional library photo-
copying does not injure publishers, and in many instances may actually increase
subscriptions. It is reasonable to suppose that libraries which have frequent
requests for particular works will purchase those works, if they are available,
to better serve their users and avoid the delay and administrative expense neces-
sarily involved in inter-library loan transactions. Results of ARL's examination
of one inter-library loan network showed a very low rate of coincidence among
requests. Rarely was the same article requested by the libraries. It also revealed
that 54 percent of all requests were for foreign periodicals and domestic pub-
207
lications not covered by copyright, and that of the remaining 46 percent, 29 per-
cent of the requests were for publications more than 5 years old, and only 17
percent of all requests were for materials five years old or less. In view of the
facts that the overwhelming volume of photocopying involved neither current
publications nor multiple copying of the same publications, it is manifest that
the photocopying by the libraries was not taking the place of subscriptions.
Indeed, library photocopying services may actually help to increase subscriptions,
by providing a kind of advertising for the periodicals in which requesters find
articles of value.
"While there is no evidence that prohibiting traditional library photocopying,
or compelling libraries — and ultimately the public — to pay copyright royalties
for such photocopying will make any contribution to the promotion of science or
the arts, or that there would be any other benefit to the public, it is manifest that
the direct and indirect costs of the prohibition will be great. Simply to ascertain
that a royalty is payable and to collect, account for and remit the royalty will
involve heavy administrative costs. If these accounting charges are passed on to
library patrons, they will magnify the direct cost impact on the public, and
discourage use. If the cost is charged to the libraries' periodicals budget, it will
mean reduced subscriptions, resulting in a decrease in the periodicals available
to library users and loss of subscription income to publishers. Another cost
will be increased theft and mutilation of publications ; and the more libraries
have to spend for repair and replacement of mutilated material, the less they
will have to spend on new books and journals. But perhaps the heaviest cost
of all will be the intangible cost to scholarship, research and education resulting
from the deterrent effect which imposition of a royalty fee will presumably have
on students and other researchers whose work is assisted and simplified by
ready access to photocopies for reference.
The question which this Subcommittee is called upon to answer may be simply
put. Should a library be prohibited from making, at a user's request, a single
copy of a journal article or of an excerpt from another published work, or liable
for a royalty fee simply because it obtains the copy from, or supplies it to a
branch library, a library member of a county or regional library system, or
other consortium of libraries? Because it is clear that such customary copying
by libraries is responsive to specific, specialized needs of library users provides
the public access to materials which would otherwise be unavailable and does
not in fact serve as a substitute for svibscription to the publications concerned,
the answer must be that libraries should not be so prohibited or so liable. It is
clear that the publishers' insistence on a provision which would limit libraries in
this regard has little or nothing to do with concerns over actual or potential
subscription losses. For the most part subscriptions have increased, with tem-
porary reductions being due to heavy competition from other publishers or to
increases in subscription rates which in recent years have outpaced consumer
price indexes. The real reason for the conflict over library photocopying lies in
its apparent potential as a lucrative new source of royalty income. Indeed it is
the publishers' insistence that the libraries agree to pay royalties on their fair
use copying which has been responsible for the breakdown of the many attempts
to bring the parties together to resolve photocopying issues.
The Association of Research Libraries submits that the direct and indirect
cost to the public of imposing the restrictions on traditional library photocopy-
ing contemplated by Subsection 108(g) (2) far outweigh any foreseeable benefit.
We submit that Subsection (g) (2) is totally inconsistent with the constitu-
tionally-mandated objective of copyright legislation — to promote the Progress
of Science and useful Arts — and should be deleted from H.R. 2223.
Statement of Claka Steuermann, Peesident, Music Libeaby Association
On behalf of the Music Library Association, I should like to offer a statement
on the proposed bill for the revision of copyright (H.R. 2223) and request that
208
this statement be included in the record of the hearings held May 14, 1975 by
Representative Robert W. Kastenmeier.
The Music Library Association, on behalf of the public which its members serve,
wishes to take exception to the exclusion of music from the library copying
privileges specified in section 108 of H.R. 2223. We feel that patrons of music
libraries should be granted the same rights of access to information as are
extended to library users in other fields. We maintain that failure to recognize
this equal right of access is discrimiuatoi-y and contrary to the public interest.
Although music may occupy a special position in the concert hall or on the air,
music in the library is not substantially different from any other subject collec-
tion in the library. Music is widely studied in schools and uni^•ersities not only
as a performing art but as a humanistic discipline equivalent to English literature
or history, and music libraries are constituted to serve these studies.
Most music libraries are located in large universities, liberal arts colleges,
conservatories and large public libraries with extensive research collections.
Music libraries are the repository for one thousand years of Western culture, the
period for which we have notated readable records of our musical heritage.
Scholars and students come to music libraries to examine and study these works.
Such study is a demanding discipline and serious students need to study, analyze,
and compare portions of complex musical scores in the same way that advanced
students of medieval history, French, or biology need access to data in their
respective fields. Just as the plays of Shakespeare represent more than a vehicle
for actors to a specialist in English literature, so the symphonies of Beethoven
are of intellectual and aesthetic concern to students and scholars of music.
Perhaps the committee is unaware that the exclusion of music in clause (h)
of section 108 would restrict the works of Bach, Beethoven and Mozart as well as
those of living composers. Edited versions of music from any century may be
registered for Class E (musical composition) copyright. It is, in fact, almost im-
possible to find a score of any kind published in this century which does not bear
a copyright notice, and this notice makes no distinction between editorial and
authorship copyright. Thus the exclusion of music works in clause (h) will
affect study not only of the music of Bela Bartok who died in 1945 but of works
by Wolfgang Amadeus Mozart (d. 1791) and Guillaume de Machaut (d. 1377).
Such restriction may not be the intent of the legislature, but it wall be the effect
of the statute as it now stands.
Another characterization of music is the practice of issuing scholarly editions
in large multi-volume anthologies and collected works. Such sets are customarily
found only in libraries. Many of them have been out of print for years. Because
of their value, volumes of such sets are rarely available for circulation. Restric-
tion of photocopying from such editions as included in 108 (h) would relegate
their contents to library shelves where only those with time and the ability to
use the scores in the reading room could benefit from them.
By way of contrast, most music libraries are not concerned with ephemera.
For instance, the multitudinous lead sheets and guitar arrangements which
constitute the bulk of copyright registrations do not find their way into the
regular collection of the Library of Congress, much less into smaller libraries.
Economics alone makes it impractical for libraries to house and care for material
which does not have some social significance or enduring aesthetic value. Music
publishers are apparently most concerned about the protection of current, salable,
comparatively simple compositions. Restriction of library copying is not a very
practical way to go about this. First, as we have pointed out, such works are
not necessarily likely to be found in libraries. Secondly, any musician bound on
infringement of such work, a popular song for example, could certainly take a
melod.v and harmony down by ear from a recording or the radio more easily than
he could locate a copy in a library.
Evon j^irofessional performers of serious music do not use library copies to study
and perform from. A pianist or a singer would rather have his own score if
possible, one he can mark for his personal use and one he can keep forever. Even
209
photocopies do not have the convenience of the publisher's binding which is vital to
the life of a well used score. Of course serious performers use libraries but it is
chiefly to enlarge their horizons and understanding that they do so.
In any case we would like to remind the committee that the privileges granted
in section 108 only apply to material which cannot be obtained through current
trade sources. Presumably publishers will respond to popular demand by supply-
ing materials to fill this need. On the other hand the library is frequently the
only source for obscure, the out of print, the archaic work which is not in great
demand but access to which is urgently needed by a very few.
Apparently the words "a musical work" were included in the exclusions to
section 108 at the instigation of the Music Publishers Association, an organiza-
tion of comparatively narrow economic interest whose chief function is the
management of copyright royalties. We feel that we, not they, represent the public
interest. The copying privileges extended in section 108 are not in the personal
interest of librarians except insofar as the librarians are concerned for the
public whom they serve. Photocopying certainly means more wear and tear on
the books, and probably means more work for the librarian. The Music Ijibrary
Association here speaks not for its members' convenience, but on behalf of the
students and scholars who use our collections.
The existence of section 108 in H.R. 2223 recognizes the enrichment to our
culture which scholarly study and its encouragement through libraries provide.
Music is a vital part of our cultural heritage and its study as such is recognized
as a legitimate scholarly discipline. There is no valid distinction between the
scholarly use of music in a library and the similar use of scholarly materials
in other disciplines. The exclusion of music from the privileges granted in section
108 would unfairly cripple musical scholarship, including researcli on music of
the past as well as that of the present. Such an action would discriminate against
musical scholars and would be coxitrary to the best interest of tlie public who are
the ultimate beneficiaries of scholarship in general. Therefore, we respectfully
request that the House Subcommittee on Patents, Trademarks, and Copyrights
eliminate the words "a musical work" from section 108(h) of II. R. 2223.
Statement op Frank McKenna, Executive Directoe, Special Libraries
Association, May 14 1975
Special Libraries Association wishes to record its substantial agreement with
the provisions of §§ 106, 107 & 108 relating to library photocopying in H.R. 2223
(Revision of the Copyright Law). We wish, however, to make two specific
comments and to urge that two siiecific changes be made :
(a) To comment on one item in § 107. Fair use;
(6) To comment on one item in § 108(a) (1) ; and
(c) To urge vigorously for changes in two items, in § lOS(g) (1) and (ff) (2).
Reproduction hij libraries and archives.
Our comments are presented in the sequence :
1. Identification of Special Libraries Association and Its Interests.
2. Comments on § 107. Fair Use.
3. Comments on §108. Reproduction bv Libraries and Archives: 3.1 § 109(a)
(1) ; 3.2 § 108(g) (1) & (g) (2) ; 3.3 § 108(h).
4. Conclusion.
1. Identification of Special Libraries Association and Its Interests. — Special
Libraries Association, with 9,000 members, is the second largest library- and
information-oriented organization in the United States, and the third largest
in the world. It is estimated that there are more than 10.000 special libraries
in the U.S. The concept of special libraries — or in better words — the concept of
specialized libraries is not well known among the general public or even in some
segments of the library community itself. The interests and activities of special-
ized libraries are described briefly in this document and in the annexed bro-
chure.^ SLA is an association of individuals and organizations with educational,
1 Annex. Special Library Sketchbook. S.L.A., N.Y. 1972. 45 p.
210
scientific and technical interests in library and information science and tech-
nology— especially as these are applied in the selection, recording, retrieval and
effective utilization of man's knowledge for the general vpelfare and the advance-
ment of mankind.
Special Libraries Association was organized in 1909 to develop library and
information resources for special segments of our communities which were not
adequately served by public libraries or by libraries in educational institutions.
At first the emphasis was on special sub.iect coverage in each special library
as it related to the interests and business of its parent organization, for example :
sources of statistical data for both corporations and the agencies of the national
government and state governments ; business data for banks and investment
firms : chemical information for the then developing chemical industry ; engi-
neering information for the emerging complexes of engineering and construction
companies, etc.
During the past 66 years — and with particular growing needs for rapid informa-
tion delivery since World War II — specialized libraries and information centers
have been established in all segments of our nation's affairs. They exist in for-
profit enterprises and not-for-profit organizations, as well as in government agen-
cies. Some are open to public use, and others have restricted access (because of
security classified materials) or are part of a for-profit organization (because of
proprietary information). During this period of accelerated growth, the original
emphasis on special subjects has been replaced more and more by the concept of
specialized information services for a specialized clientele. An example of such a
specialized information service for a specialized clientele is the Legislative Refer-
ence Service of the Library of Congress. Although the Library of Congress (as a
whole) is often called a "national library," the entire Library of Congress itself is,
perhaps, an outstanding example of a definition of service to a specialized clien-
tele : The Congress of the United States of America.
The specialized clients are normally the employees of the parent organization.
The specialized information services are based on the speedy availability of infor-
mation, both for current projects and for management determination of decisions
regarding future efforts of the parent organization. To these ends, the members of
SLA include not only librarians, but also persons who are subject specialists — so
that they can evaluate and screen out the irrelevant, the redundant and the too
often useless portions of the voluminous published literature. The totality of the
literature includes not only the publications of commercial publishers of copy-
righted books and periodicals, but also the avalanche output of government agen-
cies (often with security handling requirements) plus the parent organization's
own internal corporate documents (with the obvious need to protect proprietary
or competitive information) .
As a parenthetical observation, it should be noted that the pioneering work in
machine use for information storage and retrieval (now computerized) took place
in specialized libraries and information centers in the 1940's and 1950's. Similarly,
the need for miniaturization of the bulk of the literature in microforms occurred
through the influence of S.L.A.'s liaison with designers and manufacturers of
microreading equipment.
Last, but not least, S.L.A. pioneered the concept of information networks — long
before computers and other communication devices had been developed. S.L.A.
has facilitated communications among its members through the Association's
unique information network of Chapters and Divisions. Initiated more than 60
years ago, the network has been frequently updated in response to the needs of
new informational requirements.
S.L.A. is organized in 26 Divisions which represent broad fields of specializa-
tion or information-handling techniques. These fields range alphabetically from
Advertising, Aerospace, and Biological Sciences through Military Librarians^
Museums, and Natural Resources, and on to Transportation, and Urban Affairs.
S.L.A. is also organized in 47 regional Chapters which range geographically
from Hawaii across the continental United States (plus two Chapters in Canada)
and on to a European Chapter (which encompasses geographically all the non-
Socialist countries of Europe) .
Special Libraries Association in its own right is a publisher of three periodicals
and an average of six books per year. Therefore the Association has its own
interests as a publisher to conserve its sales income and royalty income. The
Association's publications are needed by special groups, but they are in such
areas of specialization that commercial publishers (or even vanity presses)
would not touch them because of the small sales potential. Our subscription lists
range from 12,000 as a high to 1,000 as a low. Our book sales average about 1,000
211
copies for each title with a range from 500 to our top category of "best sellers"
at a level of about 3,000 copies sold per title.
2. Gotnments on § 107. Fair Use. — The Association is in agreement with the
delineation of "fair use" as stated in § 107. We feel, however, that it is necessary
to comment specifically on one phrase in Item (4) :
(4) the effect of the use upon the potential market for or value of the copy-
righted work. [Emphasis indicated.]
We recognize that there may be some validity in tlie claims of some publishers
of periodicals that they may have some loss of income due to multiple photo-
copying of a single article from an issue of the periodical that is still avallaUe
in-print. If the issue is out-of-print (that is, if the publisher has not maintained
his stock in-print or in-stock), it is difficult to conceive how a photocopy of
out-of-print material can cause any loss of income to the publisher.
Further, the slow delivery by publishers to fulfill an order for a single in-print
issue is totally unacceptable to the needs of our specialized users who are
responsible for fast management decisions. There is little question that it is an
administrative impossibility to secure publisher permissions to permit inter-
library response within any reasonable time. Moreover, the costs and delays in
seeking such permissions would be prohibitive.
It is also necessary to note that the preparation of photocopies of periodical
articles in libraries can not cause a loss of income to the authors. Authors are
rarely paid by publishers of learned or trade periodicals (either as a one-time
payment or as royalty payments). Indeed, the opposite direction of payment has
become prevalent in recent years : a "page charge" is to be paid by the author
or his employer to the publisher. These page charges are usually in the range of
$50-$100 per printed page.
3. Comments on § lOS. Reproduction ty Libraries and ArcJiives. —
o.l Section 108(a) (1). — The Association is concerned with a possible inter-
pretation of § 108(a) (1) :
(1) The reproduction or distribution is made without any purpose of direct
or indirect commercial advantage; [Emphasis added.]
Clarification of the meaning of the existing language is necessary because a
majority of special library operations are conducted for purposes of "indirect
commercial advantage" when the library's parent organization is in the business,
industrial, or financial communities thru its products and services. It occurs to
us that the existing language of § 108(a) (1) may have been intended to prohibit
a "commercial advantage" to an authorized or unauthorized reprinter or re-
publisher of copyrighted materials.
We feel that our concerns can be alleviated by either of two actions :
( a ) by adding to § 108 (a)(1) a phrase such as
The reproduction or distribution is made without any purpose of
direct or indirect commercial advantage to a reprinter or a repuhlishcr
[Suggested addition italicized.] ; or
(b) through appropriate commentary in the legislative history of H.R.
2223 without any change in § 108(a) (1) as now written.
Legislation to he enacted must not prevent or penalize the preparation of photo-
copies by any library. S.L.A. is, of course, particularly concerned about the status
of specialized libraries — especially those in for-profit organizations. There will
be immeasurable damage to the total economy and welfare of the nation if such
intent were to be contained in the enacted version of H.R. 2223, or if such inter-
pretation is possible after enactment of the law. The rapid transmission of man's
knowledge — either to not-for-profit or to for-profit organizations — must not be
impeded by law.
■Whether libraries request or produce photocopies, the libraries are acting solely
as the agents for the individual and distinct users of libraries who in their totality
represent all strata of our American society.
3.2 Sections 108(g) (1) and 108 (g) (2). — Major concerns are raised by § 108(g)
which was inserted after Senate hearings on § 1361 (93rd Congress). We wish to
submit emphatic comments first on § 108(g) (2) and then to return to § 108 (g) (1).
(2) Engages in the systematic reproduction or distribution of single or
multiple copies or phonorecords of material described in subsection (d).
[Emphasis added.]
The Report accompanying § 1361 (93rd Congress) indicated that it had not
been possible to formulate specific positive examples of "systematic copying." If
212
only negative examples can be developed, can there be any logical basis for the
insertion of § 108(g) (2) ?
Tlie Association urges that § 108(g) (2) be :
(a) Deleted entirely, or
( b ) That it be amended by adding a concluding clause to read :
". . . of matei-ial described in subsection (d) so as to impair the potential market
for a copyrighted work." [Suggested addition italicized.]
The Association is concerned that the inclusion of § 108(g) (2) — as now stated —
in any final Act will seriously impede the spontaneity of research and the research
capability of organizations that maintain special libraries and information cen-
ters whose purpose is to provide access to learned, technical, or specialized
publications.
We are particularly concerned about any future construction that could be
placed on allegations of "systematic reproduction or distribution" in § 108(g) (2^
The single word "systematic" has been shown to have an almost endless number
of interpretations during the discussions of the "Conference on the Resolution of
Copyright Issues" (Nov 1974- Apr 1975). The Conference was jointly convened
by the Register of Copyrights and the chairman of the National Commission on
Libraries and Information Science.
It is important to recognize that all libraries act only as agents for their
clients who request and receive the photocopies. Inclusion of the word "sys-
tematic" does not seem to comprehend the operations of libraries- — or the na-
ture of the requests from clients of libraries. Libraries provide photocopies of
current or past publications in response to single, spontaneous requests from
the library's clients. Research workers are often thought to be isolated individ-
uals, but research itself is not an isolated activity. Therefore, spontaneous, iso-
lated— yet single — requests for photocopies of the same article or segment in
a copyrighted pul)lication may be received from more than one requestor — each
acting independently and spontaneously.
The word "systematic" has also been suggested to mean "within a library
system." Library systems have been in existence for many years ; public library
systems in cities or in counties or multiple special libraries within a corporation
or within a government agency. In more recent years, the concept of broader
library systems (regional or statewide) has grown. Such .systems have many
other meaningful functions other than the preparation of photocopies so as to
achieve economies in library functions (for example, shared cataloging, the
acquisition of foreign publications or of rare and unusual materials, and the
improved access of all citizens to informational materials of all kinds). Al-
though publisher representatives have made claims that the number of sub-
scribers has been diminished because of the existence of library systems, no
evidence has been presented that any loss of subscription income has occurred.
The above comments regarding § 108 (g) (2) are also applicable to §108 (g) (1) :
(1) is aware or has substantial reason to believe that it is engaging in tlie
related or concerted reproduction or distribution of multiple copies . . .
whether made on one occasion or over a period of time, and [whcthir
intended for aggregate use by one or more individuals or for separate nsc hy
the individual members of a group ; . . .] [Emphasis added.]
If a number of single, isolated, spontaneous requests are received over a pe-
riod of time (italic emphasis above), a library cannot become aware of sucli a
series of events without instituting an extensive and costly system of records of
past transactions.
In the case of multiple copy requests (bracketed italic emphasis above), pay-
ment of a per page copying fee to the publisher may be thought to provide an
equitable solution provided that the costs to libraries for such reporting and
payment mechanisms not be disproportionately great in relation to tlie copying
fees to be paid. However, the two possible mechanisms proposed for payment of
such copying fees completely negate the concept of "fair use" as stated in §107.
The two mechanisms proposed are :
(a) A variable subscription pricing structure with a higher cost to libraries
than to individuals. Thus the library would have paid a fee even if no photo-
copy is requested.
(ft) A transaction fee per page would result in the payment of a fee even for
the first photocopy of an item prepared unless the library were to set up a
costly record keeping operation of all past photocopy requests.
213
Discussions in past years had sug:gested a range of fees from $0.01 to $0.10 per
page. In the immediate past months, publisher representatives at meetings of
the Conference (referred to above) have indicated that they wish to receive
a liigher fee which they will determine individually for each article in each
periodical rather than a per page charge. It must be noted that many photocopy
requests are for only one page or a few pages of an article. Thus, this proposal
also would be unduly costly to libraries and their users.
Should the final result of the proposed legislation be a copying fee payment,
the price level of the copying fee must be subject to determination by legislative
or regulatory action. Otherwise it is conceivable that a publisher might choose
to set the level of a copying fee — ^whether for multiple copies or single copies —
at such a high level that access to some areas of published information could be
effectively prevented.
3.3 Section 108 (h).— The Association feels that there is a real need to dis-
tinguish between two formats of '•musical works" :
{a) Printed musical work.s, and
(&) Sound reproductions of musical works.
To achieve this distinction, we suggest two possible amendments to §108(h) :
(1) Delete the words "a musical work" becau.se performances are in-
cluded in the subsequent phrase, '"or other audio-visual work," or
(2) Add a modifying statement so that § 108(h) will read :
"The rights of reproduction and distribution under this section do not apply
to a musical work other than a printed copy . . ." [Suggested words are
italicized.]
It is important that research workers and students of musicology be allowed
"fair use" access to portions of printed music just as § 108(a) (2) permits "fair
use" access to textual materials. In § 108(h) a clear distinction must be made
between performances or sound recordings and music in printed form.
Jf. Conclusion. — Public libraries have been historically a fundamental develop-
ment by and for the people of the United States. The initiation and growth of
specialized libraries represent a unique development in the United States begin-
ning with the Library of the Carpenters' Company of Philadelphia before the
American Revolution ; and also a concept which has spread throughout the
world.
Whether the main function of a library is public, school, university or special-
ized, all libraries strive to improve and increase ready access by the library'.s
clients to information that will enrich the personal aspirations of the library
users, the quality of our communities (whether urban, suburban or rural), and
the improvement of the economic standards of all segments of our nation's
citizens (minority groups and the disadvantaged as well as the advantaged).
We recognize the imiwrtance of the legislative protection of copyright for
publishers to prevent improper or unfair diversions from their rightful prolits.
We also recognize the importance of copyright protection for creative authors to
prevent diversions from their rightful earnings.
Apparently, publishers feel that their profit patterns will be improved by re-
ceiving photocopying fees. However, the establishment of library photocopying
fees will result in the subsidization of the publishing community at the expense
of all taxpayers. Public libraries and those in tax-supported schools and uni-
versities would have to seek increased public funds annually. Special libraries
in business and industry would have to seek increased budget allotments within
their corporation. As the expenses of a corporation increase, such expenses can
lead only to increased costs to the ultimate consumers of new products or of im-
proved old products.
We ask that the Subcommittee consider the distinction between the photo-
copying practices in and bij libraries on behalf of library users, which we deem
to be proper, and the practices outside of libraries which are improper and
wiiich preempt the legitimate property rights of copyright owners.
Special Libraries Association is grateful to the Subcommittee for the oppor-
tunity to present our views. The Association will be pleased to submit addi-
tional comments if the Subcommittee desires so to assist the Congress in reach-
ing an ultimate and equitable solution to an issue that has values for all
citizens.
214
congeess of the united states,
House of Repeesentatives,
Washington, D.C., October 2, 1915.
Hon. Robert W. Kastenmeieb,
Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of
Justice, Committee on the Judiciary, Rayburn House Office Building, House
of Representatives, Washington, D.C.
Deab Bob: I am concerned over current legislation in your Subcommittee,
H.R. 2223, to revise the copyright law. If Section 108(g) (2) is retained in this
bill, the only major biomedical source library in the State of Alaska will be in
violation of the United States Copyright Law.
The Alaska Health Sciences Information Center serves as the source library
for most of the material required by institutions and over 4,000 health-related
personnel in the entire State of Alaska. This service makes it possible for
doctors, nurses and physician assistants in the most remote Alaskan villages
to receive the information they need to provide optimum health care. Because
of poor communications, lack of transportation and other related problems
common to rural areas in which a small number of people are scattered over
vast distances, community health aides, private practicing physicians, Public
Health Service personnel, hospitals and universities depend heavily upon the
freedom to copy medical journals and texts for use in the bush areas.
Section lOS(g) (2) will affect not only Alaska, but other sparsely populated
areas of the United States as well. I urge you to consider the elimination of
this Section of H.R. 2223, so that the current efforts of Congress to upgrade
existing health facilities in these remote areas of the country will not be
further hindered.
I have received over one hundred letters from physicians, nurses, hospitals,
clinics, universities and state health personnel who protest inclusion of this
Section of the bill. I have chosen a number of letters from each group of health
personnel for your perusal. I request that these letters, as well as my own, be
included in the testimony of the hearings on H.R 2223.
Sincerely,
Don Young,
Congressman for all Alaska.
Alaska Methodist University,
College of Nursing,
August 12, 1975.
Representative Don Young,
U.S. House of Representatives,
Washington D.C.
Dear Representative Don Young : I am writing to express opposition to the
section on photocopying in H.R. 2223, section 108(g) (2) regarding Revision of
the Copyright Law.
Photocopying of books and articles is extremely helpful to both students and
ffsculty. It provides an inexpensive and rapid way to acquire, read and synthe-
size new materials, thus greatly enhancing the quality of education in schools
and universities.
Regarding the need of nurses and other health professionals, I feel sure that
you know it is impossible for nurses and health facilities to subscribe to all the
journals they need to keep abreast of the vast volume of current information.
Therefore, I believe that health care of patients in Alaska may be compromised
if the Alaska Health Sciences Information Center is no longer permitted to
photocopy valuable articles for nurses and other health professionals.
Very truly yours,
MoNA Ravin, R.N., MSN,
Instructor Coordinator of R.N. Programs and Outreach.
215
Providence Hospital,
Anchorage, Alaska, July 9, 1913.
Hon. Peter W. Rodino, Jr.,
Chairman, Judiciary Cotnmittee, House of Representatives, Rooin 2462, Rayiurn
House Building, Washington, D.G.
Dear Congressman Rodino : I am writing to express my opposition to HR 2223
(A Bill For the General Revision of the Copyright Law Title 17 of the United
States).
If this takes effect, the effect upon quality medical care nationwide will be
adverse, and in Alaska will be even more significant, due to our relative isolation,
there being no nearby university centers.
To pass this resolution would be a significant step backward in medical care.
Sincerely,
Maurice J. Coyle, M.D.,
Department of Radiology.
Wrangell General Hospital,
Wrangell, Alaska, July 22, 1975.
Hon. Donald Young,
House of Representatives, 1210 Longworth House Office Building,
Washington, B.C.
Dear Congressman Young: I am writing to you regarding HR 2223. (A Bill
for the General Revision of the Copyright Law Title 17 of the United States.)
The passing of this bill would terminate all major medical library services
presently provided by the Alaska Health Sciences Information Center in
Anchorage. This library is the only biomedical source in Alaska and without this
service to help small hospitals like ours, the quality of health care will surely
suffer.
Your help regarding this bill would be greatly appreciated.
Sincerely,
(Mrs.) Emma G. Ivy, R.N.,
Administrator.
The Wisconsin Interlibrary Loan Service,
Madison, Wis., May 6, 1915.
Re Deletion of Section 108(g) (2) of the copyright revision bill (H.R. 2223).
To: Robert W. Kastenmeier (D-Wis.), Chairman, Subcommittee on Courts, Civil
Liberties, and the Administration of Justice.
From : Nancy H. Marshall, Director of WILS.
As one of your constituents, I have always been grateful for your support
of libraries and federal library programs, including your recent positive vote
on the Roybal-Obey-Stokes amendment to the Education Appropriations Bill
(HR5901).
I have written to you several times in the past on what I believed to be im-
portant issues and was gratified that you, also, shared my concerns. The issue
in question is of such immediate importance that as a citizen of Madison, Wis-
consin, and the nation, as well as a librarian, I must speak out.
Your concern over the past fifteen years or more with copyright revision makes
you a recognized expert in Congress on this complex issue. You have heard the
pros and cons and have had before you voluminous written arguments and
testimony, with more to come. HR 2223 is a "good" bill, much needed and long
overdue. My concern, however, is whether it is the intent of the Congress to
severely limit or restrict altogether the public's access to library and information
resources via library photocopying. I cannot believe this is the intent of the
public's elected representatives. The nation's library collections are one of its
greatest resources, and libraries maintain as a constant goal the voidest possible
access to those collections by the nation's citizens.
Although I am aware of the fact that national library organizations, and the
publishing industry will be giving testimony to the Subcommittee on May 14, I
am deeply concerned that the interests of the consumers of library and informa-
tion resources be represented. Too often the user is overshadowed and not heard
and remains the silent majority, even though s/he is the ultimate recipient for
good or ill in many legislative actions. Thus, it may be in this case, and on
behalf of the users I submit the following for your consideration.
216
Specifically, my greatest concern is with the language of Section 108(g) (2) of
HR 2223. This Section prohibits ". . . systematic reproduction or distribution
of single or multiple copies or phonorecords of material . . ." by libraries. Section
107 appears to appropriately define "fair use", an historical privilege of libraries,
and then effectively snatches it away under 108 (g) (2).
Of particular concern is the fact that systematic reproduction is not defined,
and is, therefore, dangerously ambiguous, but if retained in the Bill could be
interpreted to effectively discontinue the traditional right of libraries of making
a single copy of a copyrighted journal for a single user, even when the number
of users and the volume of single copies is substantial. Again, I cannot believe
that the Congress wishes to deny, under the new copyright revision, this his-
torically proper access to library resources.
On behalf of the Wisconsin Interlibrary Loan Service, its member libraries
and, most importantly, its patrons, I urge the Subcommittee to delete Section
108(g) (2) from the Bill. As the Director of the WILS Network, which serves
all of the citizens of the state of Wisconsin in providing access to library materials
for research and other educational purposes, it is inconceivable that this access
will be cut off and that the taxpayers of this state will be prohibited from
obtaining materials by photocopy, materials which their tax dollars have been
instrumental in purchasing. Wisconsin is not alone in this concern. It is im-
portant to note, also, that the National Cktmmission on Libraries and Information
Science, in its final draft issued on March 10, 1975, restates its philosophy of
greater, not less, access to library and information resources by all the citizens
of the United States.
I have witnessed your concern for the citizens of Wisconsin and the nation,
and the concern of the other respected members of the Subcommittee for their
constituencies. Because of your collective past commitments, I respectfully
request that you give serious consideration to the deletion of Section 108(g) (2)
when you report HR 2223 out of committee.
Mr. Danielson. First of all, I will call Mr. Irwin Karp, who
is counsel for the Authors League of America, Inc. You gentlemen
make yourselves comfortable, and ladies. I note you are all here
together, which is fine.
Our little schedule calls for Mr. Karp first, then Mr. Lieb, Dr.
Cairns, and Mr. Hoopes. Mr. Karp, it's yours for 7 minutes.
TESTIMONY OF IRWIN KARP, COUNSEL FOR THE AUTHORS
LEAGUE OF AMERICA, INC.
jNIr. Karp. Thank you, Mr. Chairman. My prepared statement re-
flects that we are here by prearrangement at the table together. Unlike
the librarians I am not one to say that publishers are my best friends
because I represent professional authors, and publishers are not our
best friends ; and that's true of librarians, too.
I would like to introduce Dr. Robert Cairns — on my right — execu-
tive director of the American Chemical Society. On my left, Mr.
Charles Lieb. counsel, and Mr. Townsend Hoopes, president of the
Association of American Publishers. They will discuss the issue of
library photocopying in relation to sections 107 and 108 of the bill.
Let me set, if T may, the stage for their discussions. The Xerox and
other reprographic machines have established a new method of
reprint publisliing sometimes called "on-demand publishing," "one-
at-a-time reprinting," or "single-copying." Perhaps it's most starkly
reflected in the statement of the Special Libraries Association, which
wants to increase the library copying exemption to cover the "re-
printer" and "republisher," and they are correct in characterizing
libraries as such. This is a new medium for disseminating articles,
chapters from books, or entire works for individual users by reproduc-
217
ins; a single reprint to fill each order, as it is received. One-at-a-time
reprinting is well established, it has been used for several 3^ears by
reprint publishers such as University Microfilms to supply books,
journals, articles, and doctoral theses to individual customers.
Here, for example, is a copy of a 429-page book, entitled Teaching
Primary Eeading, produced on a Xerox Copy-flo machine by Uni-
versity Microfilms. The label reads, "Published on demand by Univer-
sity Microfilms," and that means very simply that each time an
order is received for this book, one copy is reproduced separately on
that machine to fill that order. I would like to leave a copy with the
committee.
Mr. Danielson. Without objection, we will accept it in our files,
though it will not be included in the record.
^Ir. Karp. I understand that.
Mr. Danielson. We don't want to be violating any rules on printing
copies. [Laughter.]
Mr. Karp. We are prepared to secure a license for you to use the
book. [Laughter.]
In fact, that is one of the points. This book was produced under
a license granted by the author and publisher. I know it because
I approved the license, which is on a simple form, for a client of mine
whose late husband wrote the book, and a royalty is x^aid each time one
copy of that book is produced.
The process of one-at-a-time reproduction also is used to reproduce
journa,l articles; and here is, for example, a journal article that was
produced by the Xerox Corp., by permission of the copyright owner.
I would like to leave that, too, not to include in the record, but for
study by the committee.
]Mr. Danielson. I want to point out, I do appreciate having the
material so that we know what you are talking about.
Mr. IvAPtP. And last, to complete the demonstrative evidence, this
volume — which is quite heavy — covers a listing of 10,000 separate
journals which are placed on microfilm by the Xerox Corp. under
license from the copyright owner, within the system of copyright, and
sold to libraries. From those microfilms are produced copies like this
(indicating). We are not talking about the old-fashioned 50-cents-a-
page photostat, as you pointed out in your question; we are talking
aljout new technology, and methods of reproducing copyrighted ma-
terials that are still in various stages of technological development.
I have one more item, this is called a microfiche card. This is even
more sophisticated, and at the same time more simple to use, and much
less costly, than microfilm. From this little card a library can repro-
duce copies of pages of an article in this form (indicating). I will
leave this for the committee's study as well.
The process of one-at-a-time reproduction is employed by several
libraries, some of which serve as reprint centers for the patrons of other
libraries, as well as their own users. There have been studies which indi-
cate that at the present time American libraries may be filling as many
as 7 or 8 million requests a year for this type of copying. And we would
like to, at the conclusion of this hearing, submit to you a compendium
of reports, as well as statements directed to the specific proposals of
the American Library Association, which unfortunately were not
available to us in advance to respond to as concretely as we would have
liked.
57-786— 76— pt. 1 15
218
Mr. Danielson. Without objection, we will receive your referred
to comments.
Mr. Karp. Much of this library-copying activity is devoted to
articles from essential, copyrighted scientific and technical journals.
Copies produced of these on demand of individual readers are given
to them in lieu of the journal itself, which is published to serve this
very audience. In Williams & Wilkins the chief judge in the Court of
Claims pointed this out in his three-man dissenting opinion, support-
ing the opinion of the trial judge. Actually, if you add up the figures
you have a complete Mexican standoff, you have four Court of Claims
judges going one way, and four the other.
Mr. Danielson. That's what we call a congressional standoff, and
when you have that, nothing passes.
Mr. Karp. He pointed out the argument that damage was not
proven was utterly without basis in the record because the majority
hadn't disproved the damages, they simply ignored the trial judge '^s
findings.
The chief judge also pointed out in his opinion that the National
Institutes of Health at the present time purchased only two subscrip-
tions to the plaintiff's journals, and if nothing else, it certainly needs
more than the two copies to meet the requests of the large in-house
staff. And that the whole purpose of what everybody really concedes
was wholesale systematic reprinting, was to do away with the neces-
sity of paying for any more subscription copies of these journals. The
literature of the library community is full of predictions of the state
of the future which may resolve itself into a few libraries that in
some instances, for certain types of publications, serve, as what Mr.
]McKenna quite accurately referred to as "reprinters" and "repub-
lishers."
I should point out that librarians' semantics have been a problem
with us throughout this discussion. They like to talk about "inter-
library loans." When they make a copy of something like this (indi-
cating an article) they don't lend it to anybody. At the Government's,
or the local comm.unity's considerable expense — the figures sometimes
estimated at $5 to $12 a copy to do this— do all the work involved.
They produce a copy which is delivered to a patron of their own, or
another library, and it's his, not a loan.
I should at this time clarify — on the top of page 3 I should not over-
look one distinction. I pointed out when University JNIicrofilms re-
produces a copy of copyrighted work it pays a royalty. When the
librarians reproduce it, they do not pay a royalty, and that's the crux
of the issue, reasonable compensation for systematic library repro-
duction.
Most of the examples that Professor Low ^ave you are examples of
"fair use" and that's not what we are quarrelmg about. Fair use is not
paid for, it is not charged for ; that is preserved very clearly in the
revision bill.
As my colleagues will demonstrate, section 108 of this bill also gives
the libraries broad copying privileges that we don't think they had
under the present law. Moreover, authors and publishers do not seek to
halt systematic library reproduction. We simply say tliat reasonable
payment should be made when copying goes to this extent, and that
workable systems can be established.
219
Tlie discussions which have been described to you, on the one hand,
have a wonderful Rashomon flavor. I can't believe I was there,'
when I hear Professor Low and his colleagues describing w^iat trans-
pired. To say that we, any of us, have a position that the mere existence
of a union list of serials in a library system establishes "systematic
copying" is simply not the case. In fact, asked twice, I twice an-
swered that, "No, we were not saying that." We were merely pointing
out the various characteristics of certain library systems in whose op-
erations one of the functions was to eliminate what they euphemistical-
ly called duplication of periodicals. That means, why should all six
or seven libraries subscribe to a journal when one can subscribe and
make copies for the others ?
The uncompensated reproduction, uncompensated reproduction of
copyrighted woi'k is bound to have a damaging effect on American
publishers and authors.
I would just like to talk briefly about the purposes of copyright.
The economic purpose of copyriglit is, in the Supreme Court's quota-
tion— on top of my page 5 — "to give valuable, enforceable riohts to
authors and publishers, to afford greater encouragement to the pro-
duction of literary works of lasti]ig benefit to the world."
And the economic philosophy underlying the copyright clause, as
the Supreme Court explains it "is the conviction that the encourage-
ment of individual efforts by personal gain is the best way to advance
public welfare through the talents of autliors."
Thus, the instrument chosen by tlie Constitution to serve the public
interest — that interest is the securing of ''iterary and scientific works of
lasting value — is an independent, entrepreneurial property-rights
system of writing and publishing. The Copyright Act establishes the
rights which prevent others from depriving authors and publishers
of the fruits of their labor. But, it guarantees no reward at all. The
reward must come, as in any private, profit-motivated operation, from
the income that the author and publisher can derive from the uses
of their books and journals. They have to take the risk that every
entrepreneur does, that the books and journals may fail financially,
although they make a valuable intellectual contribution — and journals
have failed
Mr. Danielson. Let me interrupt just briefly. I don't like to inter-
rupt you, I have practiced law for a long time'^myself, but you've got
to share time here with three more of you gentlemen. If they want you
to speak for them, I'm delighted, but otherwise I am going to have
to let No. 2 go ahead.
Mr. Karp. I'm at the end of my statement.
]Mr. Danielson. With the permission of Mv. Pattison we will hear
from all the witnesses, and then commence with the questioning;
thereby we will enhance the opportunity to hear you.
Mr. Karp. I simply want to conclude with the statement, Mr. Daniel-
son, that we urge Congress not to disrupt the delicate balance of this
system. ^Nlany compromises have been made by us already in order tO'
accommodate librarians. We don't think any more are possible with-
out inflicting very serious damage on those who create those journals.
I have also included in my statement responses to Professor Low's-
almost ritualistic attack on copyright, It is not a monopoly, not a
special privilege: it doesn't restrict the dissemination of informa-
220
tion. I submit to you the only provision in the U.S. Constitution which
implements the freedoms of the first amendment is the copyright law
because that is the only provision that establishes a legal, economic
foundation under which people can actually go about exercising those
rights, by setting up publishing enterprises, or engaging in writing.
Destroy the copyright clause — and the librarians are asking for
partial destruction — and you are also threatening seriously that private
enterprise system of exercising freedom of expression.
Thank you.
[The prepared statement of Irwin Karp follows :]
Statement of Irwin Karp, Counsel, The Authors League of America
Mr. Chairman, my name is Irwin Karp. I am counsel for The Authors League
of America, the national society of professional writers and dramatists. I
would like to introduce Dr. Robert W. Cairns, Executive Director of The
American Chemical Society ; and Mr. Townsend Hoopes and Mr. Charles Lieb,
President and Copyright Counsel of the Association of American Publishers,
They will discuss sections 107 and 108 of the Copyright Revision Bill and
the issue of "library photocopying".
The Xerox and other reprographic machines have established a new method
of reprint publishing sometimes called "on-demand publishing," "one-at-a-time
reprinting", or "single-copying" (the blander phrase favored by library si)okes-
meu). However labelled, the process disseminates articles, chapters from books
or entire works to individual users — by reproducing a single reprint to fill
each order, as it is received. Each copy, made by Xerox or other machine, is
an exact reprint of the original — letter by letter, line by line as initially set in
type. One-at-a-time reprinting is well established. It has been used for several
years by reprint publishers such as University Microfilms to supply books,
journals, articles and doctoral theses to individual customers, "on demand".
Here, for example, is a copy of a 429 page book, entitled Teacliing Primary
Reading, produced on a Xerox Copy-flo machine by University Microfilms, The
label reads "Published on demand from University Microfilms." — ^i.e., when
an order is received, one copy is reproduced separately on the Xerox machine
to fill it.
The process of one-at-a-time reproduction is employed by several libraries
to make copies of journal articles or portions of books ; some of these institutions
serve as reprint centers for patrons of other libraries as well as their own
users. Much of this activity is devoted to articles from essential, copyrighted
scientific and technical journals, many of which have modest circulations and
are published by nonprofit learned societies. Copies of these articles, produced
on demand of individual readers, are given to tJiem in lieu of lending the journal,
which is published to serve this very audience. My colleagues will explain the
serious injury to publishers from this uncompensated, systematic reproduction ;
and from its increasing use by groups and networks of libraries, in which one
institution reproduces copies of articles from journals it subscribes to, for
patrons of other libraries which do not subscribe to them.
With one-at-a-time reproduction ("single-copying", in library parlance), a
library could make many copies of the same article or work. It produces a "single"
copy for each order ; but it produces as many copies of the article as there are
orders for it. Under the exemption previously sought by library organizations
in the Senate, any library could thus make many copies of the same article, so
long as it produced one copy per order. (In the peculiar semantics of library
organizations, copies produced for patrons of other libraries are called "inter-
library loans." Actually, no "loan" is made. The copy is delivered to the patron
and becomes his property.
There is one significant difference I should not overlook. When University
Microfilms reproduces a single copy of a copyrighted work, it pays the owner a
Yoyalty — liaving previously obtained a license. However, libraries claim, and
demand Congress give them, the privilege of systematically reproducing copy-
righted journal articles and other works without payment of compensation.
[As this Committee and the Copyright Office have stressed, the copyright owner's
right to reproduce copies of his work is not subject to a "non-profit" exemption].
Reasonable compensation for systematic library reproduction is the real
221
issue. Library photocopying which is "fair use" (Sec. 107) does not require
payment. And as my colleagues will explain, Sees. 108 (d) and (e) give libraries
broad copying privileges, without charge. Moreover, authors and publishers do
not seek to halt systematic library reproduction, i.e. that which exceeds
these sections. They are willing to authorize such uses. But they believe that
when libraries systematically reproduce copyrighted articles or other works,
reasonable compensation should be paid, as Sec. 108(g) contemplates. They
also believe that "workable clearance and licensing conditions" can be developed
mutually by librarians and copyright owners, the solution prescribed by this
Committee. My colleagues will relate the continuing efforts to accomplish that
result. It is a result that must be achieved. For imcompensated systematic
reproduction of copyrighted works by libraries will inflict heavy damage on
publishers of scientific and technical journals, authors (see App. I) and other
publishers ; on the copyright system ; and on the public interest it was designed
to serve.
THE PURPOSES OF COPYKIGHT
The library photocopying issue should be considered in the appropriate con-
text— in the context of copyright's constitutional purposes and the manner in
which it was designed to serve the public interest. I will address that subject
before Mr. Lieb, Dr. Cairns and Mr. Hoopes speak to the specific photocopying
issues.
As the Supreme Court has explained, the Copyright Clause of the Constitution
was intended to establish independent, entrepreneurial, self-sustaining author-
ship and publishing as the means of serving the public interest in securing the
production of valuable literary and scientific works. In so doing, the Copyright
Clause serves a second purpose — it implements the First Amendment's freedoms
to express and publish ideas, information, opinions and all manner of literary,
scientific and artistic works. The First Amendment protects against restraints on
these freedoms. But the Copyright Clause is the only constitutional provision
which establishes a legal-economic foundation for exercising them. The Copy-
right Clause thus frees authors from the need for subsidization by the state or
other powerful, institutional "patrons", and from the restraints such support
often imposes. And it was intended to sustain the existence of a diversity of
independent publishers, who would give a wide range of viewpoints access to the
market place of ideas.
THE
The Supreme Court has emphasized that the Copyright Clause of the Con-
stitution
"was intended to grant valuable, enforceable rights to authors, publishers, etc.
without burdensome requirements ; 'to afford greater encouragement to the pro-
duction of literary [or artistic] works of lasting benefit to the world.' "
The Court said that the "economic philosophy" underlying the Copyright Clause
"is the conviction that the encouragement of individual efforts by personal gain
is the best way to advance public welfare through the talents of authors . . ."
{Mazer v. Stein, 347 U.S. 201, 219)
Thus, the instrument chosen by the Constitution to serve the public interest^
i.e., the securing of literary and scientific works of lasting value — is an inde-
pendent, entrepreneurial property-rights system of writing and publishing. The
Copyright Act establishes the rights which prevent others from depriving authors
and publishers of the fruits of their labor. But it does not guarantee a fair
reward, or any reward. For authors and publishers, both commercial and non-
profit, must depend on income derived from uses of their books and journals to
compensate for the talent, labor and money expended in creating them, and pro-
vide working capital for further publications. And as entrepreneurs, they must
assume the ever-present risk that books and journals produced by substantial
labor and cash outlays will fail financially although they make valuable intel-
lectual contributions to the public interest.
We urge that Congress should not disrupt the delicate balance of this essential
system. Carving exemptions out of the "enforceable rights" of authors and pub-
lishers does not serve the public interest. For although the resulting uncompen-
sated uses may further the convenience or ambitious plans of some "user" group,
222
they diminish or destroy the ability of authors and publishers to serve the ulti-
mate public interest — to continue producing new works of lasting benefit. The
publication of scientific and technical journals, for example, richly serves the
public interest — but it is at best a marginal economic operation. Learned societies
and others who publish them do not grow fat on their profits. Squeezed by ever-
increasing costs and static circulations, publishers will be forced to close down
some journals or not start new ones if they are denied reasonable compensation
for uses of their articles in the new medium of systematic, library one-at-a-time
reproduction. Periodicals and journals are neither immortal nor immune from the
laws of economics. The process of attrition may not be apparent to library spokes-
men, but it is nonetheless inevitable. Yet, while they are willing to make substan-
tial payments to the Xerox Corporation, suppliers and library employees to pro-
vide users with hundreds of thousands of copies of copyrighted articles, they
•demand of Congress the privilege of denying the journal's publishers any com-
pensation. [Ironically, libraries jiay the Xerox Corporation a per-page fee — a
royalty, if you will — for each page of each article they reproduce].
THE ANTI-COPYEIGHT ARGUMENTS
It has become ritual for library organization and Ad Hoc Committee spokes-
men to accompany their demands for new exemptions with a series of attacks on
copyright, calculated to suggest that the author has no legitimate claim to rea-
sonable protection for the work he creates.
THE "antitrust ARGUMENT"
Library and Ad Hoc Committee spokesmen charge that a copyright is a "monop-
oly", suggesting it offends the Sherman Act. This is not so. The copyright in a book
is not a "monopoly" in the antitrust sense. It does not give the author control
over the market in books, or tlie business of publishing them. His book must com-
pete in the market place with the 40,000 other titles published that year and the
hundreds of thousands still in print from prior years, including many that deal
with the same subject. His copyriglit only gives him certain rights to use the
book he created. The owner of a copyright only has a "monopoly" in the innocuous
sense that all property owners do — each owns a collection of rights, granted by
law, to use that which he has created, purchased or inherited.
THE "restraint OP INFORMATION" ARGUMENT
Library and Ad Hoc Committee spokesmen charge that a copyright places a
restraint on infonuation. This is not so. A patent prevents others from using the
ideas it protects. A copyright does not impose such restraints. Anyone is free to
use the ideas, facts or information presented in a copyrighted book or article. The
copyright only protects the author's expression, not the ideas, facts or infor-
mation. Other writers can draw on them. Other writers are free to independently
create similar (indeed closely similar) woi-ks; the copyright only prevents sub-
stantial copying of the author's expression.
In Progress and Poverty, Henry George made this trenchant observation about
copyright :
"Copyright . . . does not prevent any one from using for himself the facts, the
knowledge, the laws or combinations for a similar production, but only from using
the identical form of the particular book or other production — the actual labor
which has in short been expended in producing it. It rests therefore upon the
natural, moral right of each one to enjoy the products of his own exertion, and
involves no interference Avith the similar right of any one else to do likewise . . ."
The Copyright is therefore in accordance with the moral law — (p. 411)
THE "MERE PRIVILEGE" ARGUMENT
To Library and Ad Hoc Committee spokesmen, it smacks of immorality to sug-
gest that the author has a moral claim to copyright protection in a work that he
created, that would not have existed but for his talent, labor and creative efforts.
They charge that copyright is not "property" because the rights are created by
statute, and that Congress is not required to pass copyright laws since Art. I, Sec. 8
"merely" says that it "shall have the power" to do so. But the phrase "Congress
shall have the power" does not precede the copyright clause of Sec. 8 — it prefaces
the enumeration of all powers granted to Congress, including the powers to collect
223
taxes, borrow money, raise armies and regulate commerce. Obviously Sec. 8 in-
tended that Congress would enact copyright laws as well as exercise these other
vital functions.
Of course a copyright is property. Like all other property, it is "a creature and
creation of law . . ." (73 C.J.S. Sec. 1, p. 145). Like all property, it is a bundle of
rights granted by the state, through legislation or court decision Copyright is
hardly the only form of property created by statute. Property rights in billions of
dollars worth of land, minerals and other natural resources have been created by
acts of Congress.
But there is one basic distinction. These other statutes grant individuals per-
petual, exclusive rights in resources that belonged to the Nation ; they take prop-
erty from the public domain and give it to private citizens. The Copyright Act
grants the author rights in something he created and that already belonged to him
at common law ; and within a short time, the Act takes his creation from him or
his heirs and places it in the public domain. Henry George was right in saying
the author's claim to adequate copyright protection rests on "natural, moral
right". The common law recognized that right, holding that an author "has an
absolute property right in his production which he could not be deprived of so
long as it remained unpublished, nor could he be compelled to publish it." (Ferris
v. Frohman). And as the Register noted, these exclusive common law rights "con-
tinue with no limit even though the work is used commercially and widely
disseminated."
Library and Ad Hoc Committee spokesmen have not asked Congress to grant
them an exemption from the property rights of the Xerox Corporation which
would permit them to use its machines without charge to reproduce "single copies"
of journal articles or other copyrighted works. Property rights in machinery is
something that appai-ently wins their respect. But the copyright owner's right to
compensation for systematic library reproduction stands on equally firm moral
and legal footing. And his contribution to the libraries' copying operations is indis-
pensable. Unless the American Chemical Society and other publishers can afford
to continue producing their journals, the Xei-ox machines and libraries will not
have articles to reproduce.
"WORKABLE CLEARANCE AND LICENSING CONDITIONS" CAN BE ESTABLISHED
The Xerox machine, oue-at-a-time reprinting and other reprographic processes
are not the first technological changes to confront authors, publishers and the
copyright system. Motion pictures, radio, long-^playing records, television, and the
inexpensive mass-market paperback book all produced enormous transformations
in disseminating copyrighted works. Some new media destroyed prior ones. Others,
such as the mass-market paperback, reached millions who do not use its still-
surviving predecessor, the traditional "hard-cover" book. Motion pictures, radio
and television were not even mentioned in the 1909 Act. Yet it has protected the
rights of authors and publishers to these new uses, and they are entitled to receive
compensation when their works are reproduced or disseminated in these recently
ari'ived media.
Moreover, the concept of copyright has enabled authors and publishers, and
usei-s, to evolve workable licensing arrangements. "Workable clearance and licens-
ing conditions" also can be established for systematic library photocopying,
through the joint efforts of librarians and copyright owners. But that solution
will be aborted if Congress revises Sec. 108 to deprive authors and publishers of
the right to compensation when libraries systematically reproduce copies of jour-
nal articles and other copyrighted works. Destruction of that right would be
totally unfair to those who produce these works ; it would frustrate the purpose
of the copyright clause : and it soon would be harmful to the public interest and
to those very patrons the libraries wish to serve by systematic reproduction.
APPENDIX I
Uncompensated systematic library reproduction would also damage authors of
poetry, fiction, and books and articles on political and social problems, biography,
history and a wide range of other subjects. After these works first appear in a book
224
or periodical, they are often reprinted — with tlie author's permission — in an-
thologies, text books, periodicals, collections of the author's work, etc.
Many authors earn a substantial part of their income from such reprinting of
their works. Indeed, many earn the major part of their compensation in this man-
ner. Poets, essayists and short story writers, for example, receive very little when
a work is first published in a hard-cover book or periodical. But over the years
that follow, they may license several different publishers to reprint the poem,
short story or essay in anthologies or collections or textbooks. Although each fee
is small, the accumulation of fees produces a modest compensation for work oi
substantial literary and educational value. As testimony before your Subcommit-
tee indicated, many of these writers earn from 50% to 75% of their income from
these reprint fees.
Authors of books also earn a significant part of their compensation, in many
instances, from authorizing the reprinting of portions of a work— of similar size
to periodical articles — in anthologies, textbooks and other collections. Testifying
before the Senate Subcommittee, John Dos Passos noted that a considerable part
of his income from writing, in recent yeai's, consisted of royalties from licenses to
reprint portions of his books in this way. And the Xerox machine has developed
a new, authorized method of reprinting poetry, articles, etc. Certain reprint puli-
lishers now prepare customized anthologies, on demand, for college and univerr-iity
classes. Articles or other works are selected by the professor, the reprint pxiblisher
obtains permission from the copyriglit owupr, and produces just enough copies of
each piece, bound together, to serve the needs of the class or classes. Royalties are
paid to the author.
If libraries — including college and university librarie"=! — were given the power
to systematically reproduce single copies of poems, articles and sections of books
without compensation, authors would be severely damaged. The process of supply-
ing these copies — e.g. one to each student in a college class in litei-ature or political
science — can replace several copies of an anthology or book in the library or sev-
eral copies of a paperback collection or text in the college book store. It is not
necessary for the copies to be bound, so long as they are provided, they replace the
authorized copies for which the author woukl have been paid — the anthology, cus-
tomized anthology, textbook, etc. Unless authors are compensated for uses of their
works by audiences reached by the medium of systematic library one-at-a-time
reprinting, they will be deprived of a substantial part of their income.
Various reports have documented the enormous increase in imautliorized sys-
tematic library one-at-a-time reprinting of journal articles and other copyrighted
works (e.g. the Sophar & Heilprin Report for Office of Education, in 1987).
And it is common knowledge that the amount of copying in large libraries, library
groups and networks, and in university and coMege libraries has incrpased tremen-
dously since the report made by Sophar and Heilprin 9 years ago. Moreover, the
provisions of the Revision Bill must deal Mitli the amount of such copying that
will occur next year, 10 years from now, and 20 years from now.
Library spokesmen could hardly guarantee that an exemption permitting thpm
to engage in systematic reproduction would not seriously injure authors, journal
publishers and other publishers. Furthermore, an exemption for systematic library
reproduction could not draw a line — specifying that if an author or publisher
suffered a prescribpd degree of injury from library reproduction of his articV';,
poems or stories, libraries must cease one-at-a-time reprinting of his works. The
only rational solution is that proposed by this Subcommittee, workable licensing
arrangements which would provide authorization for libraries to copy, and pro-
vide reasonable compensation for authors and publishers.
In the light of copyright history, it would be dangerous to assume that uncom-
pensated systematic library reproduction will not inflict substantial damagp.
Starting with the phonograph record, every new process of dissemination has
been greeted with the same "it's not a threat" attitude the library spokesmen have
expressed toward systematic one-at-a-tinip rpprinting. Had authors been deprived
of compensation for uses of their works in motion pictures, radio, television and
mass-market paperbacks, few could today earn any reasonable compensation from
their writing.
It should be emphasized that library reproduction of articles is not "note tak-
ing" or a substitute for copying by individual readers. Persons who obtain copies
of articles from a library or publisher are not receiving handwritten notes — ■
they are acquiring reprints of printed articles or other work.s, several pages long —
just as they buy or acquire other printed materials to avoid the dozens of hours it
would take to copy that much by hand. Each copy costs money to produce. Nor
could users reproduce the copies themselves. Many patronize libraries that do not
225
have the journals. The copies are reproduced for them in libraries dozens or
hundreds of miles away. And where the user's library subscribes to the journal,
it will produce and give him a reprint of the article he wants, rather than lend
the journal — so that it can keep the journal itself available to reproduce copies of
articles for other patrons, and avoid losing this reprint master through wear and
tear, a user's negligence or theft.
Mr Danielson. INIr. Lieb, counsel for the Association of American
Publishers.
TESTIMONY OF CHAHLES H. LIEB, COUNSEL FOE THE ASSOCIATION
OP AMERICAN PUBLISHERS
Mr. Lieb. I would like to preface the reading of excerpts from my
statement to remark that, judging from the testimony this morning
from our friends representing the libraries, I think that today, sadly,
we are further from a reasonable compromise on the photocopying
problem than we have been for the last 4 or 5 years.
Today, for the first time in recent years the libraries say that they
oppose the provision against multiple copying, a section with which
thev have been in agreement since it appeared in the 1969 Senate bill.
Today, also, for the first time they say they want the elimination of
the inhibition against reproduction of audiovisual, musical, and other
materials.
Similarly, for the first time in recent years this kind of hard-line
position is taken not by some but by all the libraries, and that is a
regressive, not a compromising position.
They say today in answer to the question that was asked them
about damage to the publishers, that they don't think the publishers
are being damaged. The publishers, of course, have no way of knowing
how much library copying is being done, but their own operating
statements tell them that their results are not what they expected.
But, Mr. Anthony Ottinger from Harvard Universitv, from which
my friend, Mr. Sharaf, operates as well, submitted on February 26 of
this year a report under contract of the National Commission on
Libraries and Information Sciences, a report entitled "Elements of
Information Resources Policy," which had this to say, at page 105 :
The practice of photocopying by interlibrary loans adds another dimension to
the problem. Sisznificant proportions of interlibrary loans are met by what are
called non-returnable items. Unfortunately trend data on this score are not
available. Data on this .score disappear altogether from the 19fi9 report on
library statistics of colleges and universities, and reappear in the 1971 data only
by number of participating institutions, without transaction volume being
given.
And Professor Ottinger from Harvard finishes this paragraph with
the following, "It is hard to avoid the suspicion that these important
data were suppressed as sensitive intelligence in the war over the
Convright Revision Bill."
The position of the Publishers Association in brief is that we sup-
port the provisions of section 107 of H.R. 222o with respect to fair use
and we support the pT-ovisions of section 108 Cf) (8) , which make clear
that libraries are entitled to the benefit of this doctrine. We support,
also, the additional copying pi-ivileges extended to libraries in section
108, but we are opposed to any further limitations on the rights of
authors and other copyright owners; and we are opposed in particular
to the elimination of what we thought was being challenged today
228
namely, the section with respect to systematic copying. And we are also
opposed to modification of what we learned this morning is being
challenged, namely the preceding subsection, which inhibits multiple
copying.
Much of the copying that Professor Low spoke about this morning,
his poor boy in Arkansas who wants to copy a page, is permitted
under the principles of fair use. In addition, much duplication over
and above these permissible limits would be permitted under lOS. And
the American Library Association's Subcommittee on Copyright, of
which Professor Low, I believe, was chairman, was more candid in its
committee report wliich was submitted last July to the Library
Association than, I think, he was with you this morning.
He said in that report — and I'm quoting — "We now have provisions
under section 108 permitting photocopying of archival material;
copying for preservation; freedom of liability for copying done by
users on coin-operated machines on library premises, and the highly
important provision permitting the making of single copies for normal
interlibrary loan work."
"On the other hand," the report continues, "we have not been able
as yet to reach agreement on 'systematic copying' a term used to de-
scribe copying in a system or network where one library agrees to dis-
continue its subscription to a journal and depend on another library in
the network to make photocopies of articles from this journal when
needed."
"Copyright proprietors, rightly or wrongly, believe that such sys-
tems or networks constitute a potential threat to their rights and want
to prohibit such copying without license. We, of course, would like to
see as few restrictions as possible,"
Agreement has not been reached on systematic copying. It has not
been reached, because the libraries, as Professor Low intimated to you
this morning, walked away three times from us — and Mr. Hoopes
will elaborate on that — in our efforts to put flesh on a statutory
design which by a series of guidelines would establish what kind of
copying is permissible, and wliat is not permissible.
We stand ready to work out agreements with respect to these
guidelines. We stand ready to establish a clearance and payment
system at our expense — not the libraries'. But so far the libraries have
not been forthcoming in this regard.
Mr. DANiELSOisr. Well, you actually have a minute left. [Laughter].
Mr. LiEB. My friend was rushing me. I think he'd rather hear from
Dr. Cairns. I will yield to him. Thank you.
[The prepared statement of Charles H. Lieb follows :]
Statement of Charles H. Lieb, Copyright Counsel for the Association
OF American Publishers, Inc.
I am Charles H. Lieb. I am a member of the law firm of Paskus, Gordon and
Hyman of New York City. I appear in behalf of the Association of American
Publishers, Inc. for whom I am copyright counsel. Appearing with me are
Townsend Hoopes, President of the Association, from whom you will hear later ;
Alexander C. Hoffman of Doubleday and Company, Inc., who is chairman of the
Association's Copyright Committee; and Susan Engelhart, the Association's
staff director for copyright.
The Association of American Publishers is a trade association of book pub-
lishers in the United States. Its 265 member companies and subsidiaries are
believed to produce 85 per cent or more of the dollar volume of books published
227
in the United States. Among its members are publishers of scientific and tech-
nical journals ; some of its members are religious or educational not-for-profit
organizations. We are grateful for the opportunity to testify at the hearing
today which, we understand, is limited to the issue of library photocopying, and
we request permission to file at a later date our formal statement as part of the
record of today's proceedings.
The following, in brief, is our position :
1. We believe that section 107 of H.R. 2223 is a helpful statement of the
principles of fair use. and we support section 108(f) (3) which makes it clear
that libraries receive the benefit of that doctrine.
2. Although in some respects harmful to the interests of copyright proprietors,
we support the copying privileges extended to libraries by Section 108.
3. We are opposed, however, to any further limitations on the rights of authors
and other copyright owners, and we are opposed in particular to the eliminatioti
of section lOS(g) (2) with respect to "systematic copying.'
Much of the copying done by libraries would be permitted under the prin-
ciples of fair use which would be clarified by Section 107. In addition, much
library duplication over and above the permissible limits of fair use would be
permitted under the provisions of section 108. This freedom to conduct normal
library operations was candidly described in a July 1974 report of the American
Library Association copyright subcommittee, a copy of which we offer as an
exhibit. It reads in part :
"We now have provisions [under Sec. 108] permitting photocopying of
archival material, copying of material for preservation, freedom of liability for
copying done by users on coin-operated machines on library premises, and the
highly important provision permitting the making of single copies for normal
interlibrary loan work. [Underscoring and bracketed material supplied.] On the
other hand, we have not been able as yet to reach agreement on "systematic
copying," a term used to describe copying in a system or network where one
library agrees to discontinue its subscription to a journal and depend on another
library in the network to supply photocopies of articles from this journal when
needed. Copyright proprietors, rightly or wrongly, believe such systems or net-
works constitute a potential threat to their rights and want to proliibit such
copying by them without some sort of license. We, of course, would like to see
as few restrictions as possible placed on dissemination of information through
cooperative effort."
Agreement has not been reached on systematic copying ; instead, librarians
are now urging the elimination of section 108(g) (2) so that they will he free
to make copies not only for normal use but for library system and network
operations as well.
"Systematic copying" as the term is used in section 108 should be distinguished
from copying done pursuant to "isolated single spontaneous requests" such
as takes place in normal library procedures. Systematic copying occurs when
a libi'ary makes copies of materials available to users, either directly or
through other libraries, under formal or informal arrangements "whose pur-
pose or effect" is to have the reproducing library serve as the prime source of such
material. (Senate Report 93-983, 122)
Systematic copying, in other words, substitutes the copying for the original
which otherwise would have been purchased from the publisher. The library
world appears to be divided on whether or not licensing procedures should be
worked out for systematic copying. Some insist that no distinction should be
admitted between unauthorized systematic copying and copying pursuant to
isolated requests, and that payment should be made for neither. Others con-
cede the difference in principle, but say that the kind of copying that should
be paid for is too imprecisely defined in section 108, and that no practicable
procedures have been established by which clearance can be obtained and pay-
ments made.
We think it unnecessary to belabor the point that unauthorized systematic
copying — the kind of copying that is done at a research center, or at a central
resource point for use in a li}>rary network — is the functional equivalent of
piratical reprint publication. Certainly, this kind of copying must be paid for if,
as the National Commission on Libraries and Information Science puts it, "the
economic viability and continuing creativity of authorship and publishing" are
to be protected. ( Synopsis of second draft proposal, June 1974. )
228
It is equally meretricious to complain that the "systematic copying" that is
to be paid for is too imprecisely defined, or that payment cannot be made because
payment systems have not been established.
Section 108(g) excludes from library copying privileges not only "systematic
copying" but also the related or concerted reproduction or distribution of "mul-
tiple" copies. Systematic copying and multiple copying are general concepts ; both
are illustrated by examples in the Senate committee report (which closely follows
the discussion of fair use in your 1967 committee report), and neither is more
Imprecise than many other statutory or common law doctrines with which we
are all familiar. The libraries do not claim an inability to understand the multiple
copying concept; the systematic copying concept is no less viable or under-
standable.
What is missing of course is agreement among the parties to flesh out the
statute — not only to formulate photocopying guidelines for the assistance of
library patrons and employees, but to establish workable clearance and licensing
procedures as well.
This is what your committee recommended in 1967 and this is what the Senate
committee recommended in 1974. Had this been accomplished, we would not be
here today. It has not been accomplished, and Mr. Hoopes in his testimony will
place the blame squarely where it belongs.
Report to the Council of the American Library Association Prom the
Copyright Subcommittee
The Copyright Revision bill, S. 1361, which, due chiefly to the cable TV con-
troversy, has resided in the Senate Judiciary Subcommittee during all of last
year and up to this date in this year, now gives evidence of beginning to move.
The full Senate Judiciary Committee reported it out on July 3 and this last
Monday issued the accompanying Senate Report (S. Rept. 93-983) explaining the
legislative intent in its passage. It will now probably come to the floor of the
Senate and be passed within the next month to six weeks.
We have had many conversations with the members of the Senate Subcommittee
in the past several months about provisions in the bill affecting photocopying in
libraries. We now have provisions permitting photocopying of archival material,
copying of material for preservation, freedom of liability for copying done by
users on coin-operated machines on library premises, and the highly important
provision permitting the making of single copies for normal interlibrary loan
work. On the other hand, we have not been able as yet to reach agreement on
"systematic copying," a term used to describe copying In a system or network
where one library agrees to discontinue its subscription to a journal and depend
on another library in the network to supply photocopies of articles from this
journal when needed. Copyright proprietors, rightly or wrongly, believe siich
systems or networks constitute a potential threat to their rights and want to
proliibit such copying by them without some sort of license. We. of course, would
like to see as few restrictions as possible placed on dissemination of information
through cooperative effort.
In its report, the Judiciary Committee, in an effort to remove this impasse,
recommended that "representatives of authors, book and periodical publishers
and other owners of copyrighted material meet vtith the library community to
formulate photocopying guidelines to assist library patrons and employees."
We believe that such conferences can be promoted best through the office of some
interested but impartial individual and believe that Miss Barbara Ringer, as
Register of Copyrights, would be an ideal person for this. Not only does she have
the confidence of both librarians and publishers in her fairness and impartiality,
but she is also far and away the most experienced of anyone in the country in
the area of both domestic and foreign copyright.
In trying thus to meet the recommendations of the Senate Committee in this
regard and to accomplish what we hope will be of benefit to all, we ask Council
to transmit the following request to the Register of C^opyrights.
The American Library Association urges the Register of Copyrights to arrange
In such ways as deemed feasible and appropriate conferences between representa-
tives of authors and book and periodical piiblishers and of the library community
to resolve so far as possible the different interests in copyright legislation, to
229
Institute studies of related problems, and to promote understanding on the part
of the general public of the many complexities inherent in the copyright problem.
Presented to American Library Association Council, July 12, 1974.
TESTIMONY OP ROBERT W. CAIRNS, EXECUTIVE DIRECTOR,
AMERICAN CHEMICAL SOCIETY
Dr. Cairns. I'm Robert Cairns, and I have a very lengthy state-
ment, which I will obviously not have time to present; I would like
to submit it for the record.
Mr. Danielson. Without objection, it will be received in the record,
I would appreciate it if you would give us a "once over lightly," I am
sure you know the contents.
Dr. Cairns. I will do so. I have a summary, and I'll even have to
summarize the summary.
Mr. Danielson. Fine.
Dr. Cairns. First of all, I would like to introduce my colleagues here,
on my right, Dr. Richard Kenyon, who is director of our division of
communications. And behind me is Dr. Stephen Quigley, who is direc-
tor of our department of chemistry and public affairs, and Mr. William
Butler, representing Mr. Arthur Hanson, general comisel of our
society.
Perhaps the main objective of the American Chemical Society is
the increase and diffusion of chemical knowledge
Mr. Danielson. Your objection ?
Dr. Cairns. Our principal objective.
Mr. Danielson. Thank goodness.
[Laughter.]
Dr. Cairns [continuing]. That lays emphasis on the fact that we
are interested very strongly in the dissemination of scientific knowl-
edge.
Mr. Danielson. That is the only basis under which we can have
a copyright law, as I read the Constitution.
Dr. Cairns. Throughout the past 99 years, the American Chemical
Society approach to achieving this objective has been to gather, to
evaluate, to organize, and to control new scientific information into
a form useful for publication, then to publish journals — 16 in num-
ber, I believe — and deliver it to the scientific world, that is our position.
In providing a record of new scientific knowledge and maintaining
the basis upon which it is gathered, evaluated, and organized for pub-
lication, the journals provide a constantly updated authoritative con-
sensus of universally accepted knowledge in the fields concerned. We
can speak, I think, on this theme for a great many scientific societies,
although we are one of the largest.
The integi-al pait played by scientific journals and scientific re-
search renders them indispensible for our way of life. These jour-
nals provide the knowledge base for technical development, for answers
to urgent problems faced in the United States and the rest of the
world, such as the energy crisis, the world food problem, the delivery
of adequate health service, and pollution abatement.
It is critically important that this system of organizing, evaluatiufr,
and providing scientific infomiation remain healthy, that is our maia
contention.
230
JiTow, the central argument focusing on photocopying is essentially
an economic one. I wish to call your attention particularly to the
critical problem provided by the cost of bringing the research journal
tlirough the process of editing, collecting and evaluation, composition,
and other production steps, up to the point of being ready to print
the first copy. These costs are what we call "first-copy costs." In our
system in making scientific information broadly available is to con-
tinue, we must continue to find ways to support these first-copy costs,
as well as to pay the costs of the journals actually printed and
delivered.
We are finding that subscriptions to our journals are decreasing.
Since 1969, subscriptions have decreased from 12 to 18 percent. For
example, the Journal of the American Chemical Society, which is
our prestige journal, has dropped from almost 20,000 down to a
little below 16,000 subscribers as of the end of 1974.
The Journal of Organic Chemistry has dropped from 10,500 to
9,500 ; the Journal of Physical Chemistry from 6,500 to 5,500 ; others
have declined comparably.
If users are allowed, without paying for the journal, to receive
copies of the journal papers, it is not likely that they will subscribe
to the journal. Under such conditions, paid subscriptions can be
expected to continue to drop rapidly.
While replacement of actual printed copies of the journal by photo-
copies would reduce the cost to the user, the large costs referred to
as "first-copy costs" would remain uncompensated, it would have
to be distributed over a decreasing number of journal subscriptions,
and the result would be very expensive journals. This would mean
that the cost would fall on the relatively small number of individual
organizations which would continue to subscribe to the journal. Ob-
viously, a continuous trend in that direction would threaten the eco-
nomic stability of the journal system.
If, on the other hand, the copyright law is designed to require pay-
ment for photocopying of papers from journals of an adequate and
equitable charge for the copy, this would distribute the cost of the sys-
tem more equitably over those who benefit from it. The objective ig
not to prevent such photocopying, but, rather, to provide support for
the basic costs of developing scientific information for distribution,
thus keeping the journal system viable as a base from which the im-
proving technologies for improved dissemination can draw ; the result
would be a more effective and more lasting total information system.
Mow, there are a couple of studies to which I make reference in
my main report. One, that the interlibrary loan requests — by their
own studies — grew from 859,000 requests in 1965 to double that figure
in 1969, with projections as high as 2.6 million in 1974—75. So, we
are getting up into millions, and millions, and millions of interlibrary
loans, to give you an order of magnitude; and that is from their own
data.
In another study the author discussed service by possibly a national
periodical resources center. They estimated that from the collection
of 10,000 titles the demand will start growing in the range of 58,000
to 75.000 in the 1st year, to a range from 2% to 5 million in the 10th
year. Yet, 90 percent of these would be filled by pliotocopies. These
figures give you some indication of the increase in capacity of the
231
network and system of improving the dissemination of scientific
information.
However, it is reasonable to expect that the number of journal
subscriptions from which those will be provided will be much smaller
than at the present.
There have been objections that any system of licensing or fees
for photocopies would encourage excessive administrative costs. How-
ever, a study of the elements and possible systems for licensing and
collection of fees for photocopies has been developed by a working
group of librarians and publishers of the Conference on the Resolu-
tion of Copyright Issues under the chairmanship of the National
Commission on Libraries and Information Science — plans are now
being developed for testing such proposed systems as a means of
learning just how the process may be carried out in an economically
sound fashion.
I have here Dr. Kenyon who is a member of that working group
and he will be glad to answer specific questions on that system.
Despite reservations on some segments of this bill, the American
Chemical Society recommends passage of the sections of H.R. 2223
related to library photocopying. This recommendation is made with
the belief, based on work with the Conference on the Resolution of
Copyright Issues, that a practicable system for licensing and fee col-
lection for photocopies of copyrighted works can be developed, which
will render fair and equitable charges for systematic photocopying in
the interest of an improved and economically viable system for the dis-
semination of scientific information.
Mr. DANrELSOx. Thank you very much. You have 21^ minutes left.
I'm watching the clock in the back of the room. Would you like to yield
to your associate ?
i)r. Cairns. Yes.
Mr. Danielson. Your name, sir ?
Dr. Kenyon. Richard Kenyon. I would like to make a comment on
the working group of the Conference on the Resolution of Copyright
Issues, which has been mentioned in earlier testimony here. The
w^ork of this group now has been announced in a release by the Library
of Congress, and in our most recent meeting on April 24, we agreed the
documents were public documents. In the interest of providing infor-
mation to the record I would like to offer the report of our working
group for the record.
]Mr. Dantelson. "Without objection we can receive it in our files. I
think we will withhold just how much we want to print in the record
until the staff and members have had a chance to go over it. I do thank
you for making it available, though. [See app. 3.]
Dr. Cairns. I think I can summarize by saying that I think we can
work out a system which is economically viatle, and continue to sup-
port authors, users, editors, and members of the scientific community at
large.
'Slv. Dantelson. Thank you very much, Dr. Cairns.
[The prepared statement of Dr. Robert W. Cairns follows :]
Statement of De. Robeet W. Cairns, Executive Directoe, American Chemical
SOCIETT
Mr. Chairman and members of the Subcommittee: My name is Robert W.
Cairns. I am the Executive Director of the American Chemical Society and, with
the authorization of its Board of Directors, I appear before you today to present
232
the Society's statement. I have spent 37 years in industry and retired as Vice
President of Hercules Incorporated on July 1, 1971, to accept the position of
Deputy Assistant Secretary of Commerce for Science and Technology. I re-
signed from that position on December 1, 1972, on acceptance of my present ap-
pointment. Accompanying me today are Dr. Richard L. Kenyon, Director of the
Public, Professional and International Communication Division, Dr. Stephen T.
Quigley, Director of the Department of Chemistry and Public Affairs, and JMr.
William B. Butler, representing Mr. Arthur B. Hanson, General Counsel of the
Society.
We appreciate being given this opportunity to comment on certain features
of the Copyright Revision Bill, H.R. 2223. The issues addressed by this legislation
are both fundamental to the formulation of national science policy, and of vital
significance with respect to the ability of our Society to resolve many of the prob-.
lems vphich confront it. These issues have been under discussion for some time
now by the Committee on Copyrights of the Board of Directors and Council of the
American Chemical Society, as well as by other similar scientific societies, and a
general consensus on them has been under development. This consensus has been
developed in the context that the protection of copyrighted material will "pro-
mote the Progress of Science and Useful Arts", as specified in Article I, Section
8, Clause S of the Constitution of the United States. The viewpoint which we at-
tempt to express is that of the chemical, scientific and technological commu-
nity, as represented by the American Chemical Society.
The American Chemical Society is incorporated by the Federal Congress as a
non-profit, membership, scientific, educational society composed of chemists and
chemical engineers, and is exempt from the payment of Federal income taxes
under section 501(c) (3) of the Internal Revenue Code of 1954, as amended.
The American Chemical Society consists of more than 107,000 such above
described members. Its Federal Charter was granted by an Act of the Congress
in Public Law 358, 75th Congress, 1st Session, Chapter 762, H.R. 7709, signed
into law by President Franklin D. Roosevelt on August 25, 1937, to become
efl'ective from the first day of January, 1938.
Section 2 of the Act is as follows :
"Sec. 2. That the objects of the incorporation shall be to encourage in the
broadest and most liberal manner the advancement of chemistry in all its
branches ; the promotion of research in chemical science and industry ; the
improvement of the qualifications and usefulness of chemists through high
standards of professional ethics, education, and attainments ; the increase and
diffusion of chemical knowledge; and by its meetings, professional contacts,
reports, papers, discussions, and publications, to promote scientific interests and
inquiry, thereby fostering public welfare and education, aiding the development
of our country's industries, and adding to the material prosperity and happiness
of our people."
Its Federal incorporation replaced a New York State Charter, which had been
effective since November 9, 1877.
One of the principal objects of the Society, as set forth in its Charter, is the
dissemination of chemical knowledge through its publications program. The
budget for the Society for the year 1975 exceeds $39,000,000 of which more than
$30,000,000 is devoted to its publications program.
The Society's publication program now includes three magazines and seven-
teen journals, largely scholarly journals that contain reports of original research
from such fields as medicinal chemistry, biochemistry, and agricultural and food
chemistry, as well as a weekly newsmagazine designed to keep chemists and
chemical engineers abreast of the latest developments affecting their science and
related industries. In addition, the Society is the publisher of Chemical Abstracts,
one of the world's most comprehensive abstracting and indexing services. The
funds to support these publications are derived chiefly from subscriptions.
The journals and other published writings of the Society serve a very im-
portant function, namely : they accomplish the increase and diffusion of chem-
ical knowledge from basic science to applied technology. In so doing, they
must generate revenue, without which the Society could n,ot support and con-
tinue its publications program in furtherance of its Congressional Charter to
sei've the science and technology of chemistry. The protection of copyright has
proved an essential factor in the growth and development of the scientific-.
publishing program of the Society.
The twenty periodical publications of the Society produce more than 40,000
pages a year and subscriptions in 1974 totalled 323,000. Chemical Abstracts
annually produces more than 140,000 pages which go to 5,500 subscribers. Its.
233
abstracts number in excess of 361,000 yearly and its documents indexed in excess
of 425,000. The single greatest source of income for all ACS publications is sub-
scription revenue.
As is indicated by the objectives of the American Chemical Society, we believfr
that the effective dissemination of scientific and technical information is critical
to the development, not only of the society and economy of the U.S.A., but also
of modern society worldwide.
These journals provide the knowledge base for technical development of
answers to urgent problems facing the United States and the rest of the world,
such as the energy crisis, the world food problem, the delivery of adequate-
health services, and pollution abatement. It is critically important that this
system for organizing, evaluating, and providing scientific information remain
healthy.
Scholarly journals are the major instruments for dissemination and recording
of scientific and technical information. These journals are expensive to produce.
If the costs are not supported financially by those who make use of them they
cannot continue. There is no adequate substitute in sight.
The scholarly scientific or technical journal is more than merely a repository
of information. The scientific paper is the block with which is built our under-
standing of the workings of the world around us. In his papers, each scientist
records his important findings for the permanent record. His successors then have
that knowledge precisely recorded and readily available as a base from which
they may start. So the process continues in a step-by-step fashion from scientific
generation to scientific generation, each worker having available to him or her
the totality of the knowledge developed up to that time. Each scientist stands
upon the shoulders of his predecessors.
But this analogy of simple physical structure is inadequate, for at least of
equal importance is the continuous refinement that takes place. Before new
knowledge is added to the record, it is reviewed, criticized and edited by authj)ri-
tative scholars ; then, once published, it is available in the record for continued
use, criticism, and refinement. New findings make possible the revelation of
weaknesses in the earlier arguments and conclusions, so that as the structure
of scientific knowledge is built higher it is also made stronger by the elimination
of flaws. While it has been said that mankind is doomed to repeat its mistakes,
the system of scientific recording in journals is designed to prevent the repetition
of such mistakes and to avoid building upon erroneous conclusions. The scholarly
journal record is the instrument for insuring this refining process.
In addition, journal papers form an important part of the basis upon which a
scientist's standing among his peers is judged. For this reason, scientific scholars
are willing to give their time and effort to help produce these evaluated records
and are also willing to leave the management of the copyright on their papers in
the hands of the scientific societies. These sckolars are rarely concerned with
private income from their published papers, but they are vitally concerned
with the preservation of the intrinsic value of the scientific publishing system.
Publishing costs have risen and are rising continuously, making the con-
tinuation of the scientific-journal system increasingly difficult. This has been
recognized by the U.S. Government in acknowledging the philosophy that
scientific-research work is not complete until its results are published, and in
establishing a policy which makes it proper that money may be used from federal
support of research projects to help to pay the cost of journal publication. It is
this policy which provides most of the funds for paying page charges, charges
originally designed to pay the cost of bringing the research journal through the
editing, composition, and other production steps, up to the point of being ready
to print. However, publishing costs are now so high that these page charges no
longer pay even for these initial parts of the publishing process. American
Chemical Society records in 1974 show that page charges supported one-third or
more of those costs for fewer than 30% of ACS journals.
Publishing costs must be shared by the users. If these users are allowed, with-
out payment to the journal, to make or to receive from others copies of the jour-
nal pajiers they may wish to read, it is not likely they will be willing to pay for
subscriptions to these journals. If and as free photocopying of journals proceeds,
the number of subscribers will shrink, and subscription prices will have to rise.
The reduction of subscription income may continue to the point of financial
destruction of these journals.
57-786— 76— pt. 1 16
234
The problems of the commercial publishers of many good scientific journals
are even more severe, because these publishers do not have the moderate as-
sistance of page charges. , . , ,
The doctrine of fair use, developed judicially but not legislatively, has long
been useful to the scholar, for it has allov^^ed him to make excerpts to a limited
extent for purposes of the files used in his research. However, the modern tech-
nology of reprography has offered such mechanical efficiency and capacity for
copying that it is presently endangering the protection given the foundations
of the scholarly journal by copyright. "Excerpts," instead of being notes, sen-
tences, or paragraphs, are being interpreted to mean full scientific papers, the
aforementioned building blocks.
As the copyrighted journal system developed, it was agreed long ago that the
scholar should be allowed to hand-copy excerpts for use as background informa-
tion. As a further step, authors became accustomed to ordering the reprints of
their papers to send to their colleagues as a means of assuring a good record
of the progress of work in the field concerned. This was followed, 20-80 years
ago. by some minor use of the old "Photostat" machine. While that process
stra'ined a little the proprieties of copyright, it was fairly generally agreed
that the mechanics of the practice were such as to help the research scientist
while difficult and costly enough not to undermine the basic structure of the
journal system.
We hold no objection to a scholar himself occasionally making a single copy
in a non-systematic fashion for use in his own research. However, in the past
decade the techniques of reprography have advanced to such an extent that
third parties, human and mechanical, are beginning to be involved in a sub-
stantial way. It now is practical to build what amounts to a private library
through rapid copying of virtually anything the scholar thinks he might like
to hnve at hand. While this process has obviously personal advantages, it is now
being done extensively and increasingly, without any contribution from these
scholars — or the libraries which copy for them — to the cost of developing and
maintaining the basic information system that makes it possible. Even con-
servative projections of the development of reprographic techniques within the
next decade make it clear that the economic self-destruction of the system within
the next decade is a real possibility. Overly permissive legislation could make
this destruction a certainty.
Use of a journal by an individual for extracting from it with his own hands,
by hand-copying the material specifically needed and directly applicable to hia
research, is one thing. A practice in which an agent, human or mechanical, acts
as copier for an individual or group of individuals wishing to have readily
available, without cost, copies of extensive material more or less directly related
to his or their studies and research, is quite a different matter. The latter is
certainly beyond justification on the mere grounds that technology has made
it convenient, or that the purposes are socially beneficial.
Documented evidence of the increase in photocopying is found in "A Study
of the Characteristics, Costs, and Magnitude of Inter Library Loans in Academic
Libraries," published in 1972 by the Association of Research Libraries. There
we find that in 1969-70 the material from periodicals sent out in response to
requests for "interlibrary loans" filled by the academic libraries surveyed was
S3.2 percent in photocopy form as compared with 15.2 percent in original form
and 1.4 percent in microform.
In that same report the volume of interlibrary loan activities from academic
libraries is traced. It grew from 859,000 requests received by academic lending
libraries in 1965-66 to 1,754,000 in 1969-70. and is projected to reach 2,646.000 in
1974-75,
Much thinking and study are being devoted to systems for improving access
to periodicals resources through networks. These networks would make the
scientific information available widely and rapidly from a relatively small
number of original journal copies. In "Access to Periodical Resources : A Na-
tional Plan", by Vernon E. Palmour. Marcia C, Bellassai, and Lucy M, Gray, a
report prepared at the request of the Association of Research Libraries, it is
stated that a number of advantages accrue to the provision of photocopies in-
stead of originals. "Supnly of photocopies." the report states, "is more es-
sentially a 'mail order' or merchandising rather than a lending operations." It
235
is also noted tbat "A single copy, or in some cases a few copies, at a center can
meet, without undue delay, the needs of a large number of users."
In viewing the possible growth of service by a National Periodical Resources
Center, the authors estimated that from a collection of ten thousand titles, the
demand would grow starting in the range of 58,000 to 75,000 in the first year to
a range of 2,281,000 to 5,462,000 in the tenth year, with 90 percent of the request
being filled by photocopies.
Such estimates as these show expectations of a great growth in use of photo-
copied material. Obviously the direct uses of the printed journal would be very
small.
These data give some indication of the trends in use made of the published
literature without contribution of any share of the very considerable cost of
evaluating, organizing, and publishing it.
In another report, "Methods of Financing Interlibrary Loan Services," by
Vernon E. Palmour, Edwin E. Olson, and Nancy K. Roderer, a fee system is sug-
gested as a practical possibility with the fee initially set at $3.50, about half
the full cost recovery, and gradually increasing toward providing the full cost.
No consideration is given in this suggestion to payment of a fee to the publishers
from whose periodicals the copies are made. An adequate additional fee, paid
into a clearinghouse and distributed to the appropriate publishers, could spread
the full cost of support of a journals system equitably over the users.
It is desirable that use he made of modern technology in developing optimum
dissemination. This technology includes the use of modern reprography, but
as technology inherently includes economics the means of financial support of
the system must be a part of its design. Therefore, photocopying systems must
include an adequate means of control and payment to compensate publishers
for their basic editorial and composition costs. Otherwise, "fair use" or library-
photocopying loopholes, or any other exemptions from the copyright control
for either profit or non-profit use, will ultimately destroy the viability of scien-
tific and technical publications or other elements of information dissemination
systems.
The copyright law is directed to the interest of the public welfare. It is not
in the interest of the public welfare to modify the copyright laws so as to allow
the economic destruction of the scientific and technical information system.
The American Chemical Society is properly concerned with the clarity and
vitality of the copyright laws of the United States and of the world. These
laws have provided a sound basis for the continuity of scientific communica-
tion programs, including at present the primary and secondary journals, micro-
forms, and computerized information systems.
The Society recognizes that its members and others concerned with its pub-
lications are both "authors" and "users" of information, and that it is the So-
ciety's objective to serve their needs as fully as possible. It recognizes the
functions and problems of such vital information channels as libraries, infor-
mation centers, and information systems and networks. It further recognizes
the challenges offered by technological advances in communication techniques.
However, scientific communication programs cannot continue without proper
funding, and in the immediate future this funding must continue to come from
"authors" and "users." "Page charges" are an acceptance of the philosophy
that "authors" (or their employers) must share in the funding of the communica-
tion process, and that publication of findings is the final step in the completion
of a significant study. "Users" have traditionally paid their share through per-
sonal and employer (library) subscriptions to printed publications, but "tech-
nology" and "networks" are changing the need for multiple or even local copies,
making it all the more vital that revenue be obtained in relation to direct use,
wherever and however provided.
Because law is the basis for order among individuals, organizations, and na-
tions, the Society believes that the laws which affect communicaton — informa-
tion transfer — must be equitable and clear, and that they must be periodically
reviewed to maintain these qualities. The copyright law of the United States
has not been seriously updated since 1009, and it is badly in need of revision.
Its antiquity is the direct cause for present ethical and judicial arguments over
what is "fair" or "free" as regards communication — arguments which obscure
the basic rights of authorship : the "value added" factors in reviewing, editing,
publishing, and information-base creation ; and the fact that the real problem
236
is inadequate funding at most stages of the communication process (including
libraries).
Tlie Society has repeatedly and clearly stated its need for copyright pro-
tection against continuation and growth of "uncontrolled dissemination of scien-
tific information" — the unauthorized regular or systematic or concerted single-
copy republishing of Society papers by libraries or networks of libraries. The
Society is opiwsed to copyright-law revisions relating to "copying" that would
destroy the copyright protection for its publication programs.
Until communication issues can be further clarified, the Society would prefer
that "fair use" remain a judicial rather than a legislative concept. The So-
ciety is specifically opposed to any definition of "fair use" that could be further
interpreted as permitting unauthorized, concerted "single copying'' (photo-
copying, electronic copying, etc. ) .
The Society recognizes the need to develop total systems for information
transfer ; therefore, it specifically opposes any broadening or interpretation of
the definition of or the right to prepare a "derivative work" that would reserve
to "authors" (primary publications) the right to control the writing of original
informative abstracts that are not complete "abridgments" or "condensations."
However, the latter are accepted as being fully protected derivative works ;
they are of significance to the Society's future primary publication of "short
papers."
The Society advocates immediate copyright-law revisions that will more com-
pletely and explicitly define and continue to protect such technological develop-
ments as computerized information bases, computerized data bases, computer
programs, and microforms, i.e., that will define and specify these as "Exclusive
Riglits in Copyriglited Works." Because the scope and importance of these tech-
nological developments are already extensive, the Society no longer advocates
deferring related copyright-law revisions until after the studies and recommen-
dations of the National Commission on New Technological Uses of Copyrighted
Works. In particiilar, the Society firmly advocates revisions which clarify and
continue the protection of copyrighted computer bases at time of input, on the
basis that copyright control at output only might be limited severely by broad
interpretations of "fair use."
The Society opposes most of the specific additional limitations on the exclu-
sive rights of authors and their publishers to provide copies of copyrighted pub-
lications that are contained in recent legislative bills. As proposed, these limita-
tions do not really meet the needs of "users" and libraries for uncomplicated
copying.
The Society recognizes that these and other limitations on exclusive rights
to provide copies are based on the very real desire of "users," and libraries in
their behalf, to avail themselves of such "new technology" as photocopying to
prepare or obtain copies of copyrighted documents quickly and easily. The So-
ciety has repeatedly declared its readiness to cooperate in the developm_ent of a
clearinghouse that can grant such permissions in an equitable and simple man-
ner and is presently working actively tow^ard this goal through the Conference
on the Resolution of Copyright Issues under the chairmanship of Barbara
Ilinger, Register of Copyrights, and Fred Burkhardt. Chairman of the National
Commission on Libraries and Information Science. The Society also advocates
the development of "document-access networks" that will quickly supply actual
copies in an equitable maimer. The Society therefore advocates coiiyright-law
provisions that will equitably authorize and regulate such important services to
"users."
Despite reservations on some segments of this bill, the American Chemical
Society recommends passage of the sections of H.R. 2223 related to the library
pliotocopying. This recommendation is made with the belief, based on work witii
the Conference on the Resolution of Copyright Issues, that a practicable system
for licensing and fee collection for photocopies of copyrighted works can be de-
veloped wliich will render fair and equitable charges for systematic photoc^p.v-
ing in the interest of an improved and economically viable system for the dis-
semination of scientific information. Plans now are being developed for testing
such a mechanism.
Mr. Danielson. I believe the next gentleman is Mr. Hoopes, presi-
dent of the Association of American Publishers.
237
TESTIMONY OF TOWNSEND HOOPES, PRESIDENT, ASSOCIATION OF
AMERICAN PUBLISHERS
Mr. HooPES. Thank you, ]\Ir. Chairman. I am the president of an
association of 265 members who are responsible for the publication
of perhaps 85 percent of all the books published in this country.
On behalf of our association and speaking to some extent for the
other copyright owners, my purpose is to reinforce support for the
present sections 107 and 108, which INIr. Lieb has addressed in some
detail. Mainly I will summarize our recent experience with the library
community in seeking to be responsive to jwinted suggestions from
both the House and Senate Judiciary Committees.
The Senate report accompanying S. 18G1, which passed the Senate
last September, expressed the belief that section 108 provides "an
appropriate balancing of the rights of creators and the needs of
users." At the same time, recognizing the complexities, the report urged
the parties — in this instance authors, publishers, and librarians— to
meet together directly in order to develop more precise photocopying
guidelines for fair use; and also to develop workable clearance and
license arrangements for copying beyond fair use.
This urging by the Senate committee repeated a similar proposal by
the House Judiciary Committee in 1967. Responsive to that earlier
proposal, publishers and authors met with librarians in 1972 and again
in 1973 for discussions that became known, somewhat grandiloquently,
as the "Cosmos Club and Dumbarton Oaks talks."
The formula evolved at the Cosmos Club was that, if reprints of
journal articles were readily available from the publisher or his agent,
then the library would refrain from photocopying of its own. The
formula evolved at Dumbarton Oaks was that a journal publisher
would encode the front page of each journal article with a serial num-
ber and a reprint price, and that a librar}^ making a copy thereof would
so advise a clearinghouse operated by the publislier. At quarterly, or
semi-annual intervals the clearinghouse would bill the library for the
aggregate royalty charges, and would then distribute the proceeds to
individual publishers. Wliile both the Cosmos and Dumbarton efforts
were deemed feasible by the library participants, they were later both
shot down by officials of the various associations.
Since November, 1974, publishers have again been negotiating with
the librarians under the joint sponsorship of the Register of Copy-
rights and the Chairman of the National Commission on Libraries and
Information Science. Eight meetings of a 12-man working group were
held between early December 1974 and mid-April of this year.
I regret to say, Mr. Chairman, that there has not been much progress
to date, chiefly because the librarians have refused to accept either
the Senate bill, or the guidances suggested by the Library Commission
chairman and Miss Ringer, as in any way a limiting frame of refer-
ence. We have asked them, for example, to join with us in defining
typical situations of two kinds : (a) Those which would clearly involve
fair use copying, and (b) those which would clearly involve systematic
copying beyond fair use, thereby requiring permission and royalty
payment.
Their consistent reply has been that they know of no copying done
by libraries which extends beyond fair use. JNIr. Low in his statement
238
this morning complained about the practical difficulties of distin-
guishing single copying from S3^stematic copying, but it is a matter of
record that his group has refused even to discuss guidelines designed
to establish just such practical distinctions.
Having thus failed to come to grips with the substantive issue here
involved, the two sides have recently agreed to conduct a survey of
actual photocopying practices in libraries, and a test of a payments
mechanism modeled along the lines of the Dumbarton Oaks proposal.
But the library community has made clear tliat its participation in this
exercise in no way implies an obligation to pay royalties under any
circumstances.
I suggest, Mr. Chairman, two possible explanations for this unfor<^h-
coming attitude. Either the library community as a whole is still
attempting to secure total exemption from copyrights and expects to
get its way with the Congress ; or the attitude here expressed reflects a
minority view of the library conmiunity and is not, therefore, repre-
sentative of the whole. In this latter connection, I must say that we
are struck by the difference in the attitude we have found among local
librarians, and those expressed by the official spokesman of the library
associations in Washington. In the field, we have encountered wide-
spread sympathy for and understanding of the basic conce]:)t of copy-
right, and of the need for copyright protection, accompanied hy a felt
need for guidelines that will more precisely determine the dividing
line between fair use and infringement.
I would like to make brief mention in this same context of the Com-
mission on New Technological Uses of Copyrighted Works which was
established by law on December ol, 1974. Our association has sup-
ported and does support this commission. But we believe it would be a
serious mistake if Congress should seek to avoid coming to its own finite
conclusions on key copyright issues on the grounds that such questions
ought logically to be referred to the new commission. In our judgment
such a course would represent a serious abdication of congressional
responsibilit}^, and would increase rather tlian decrease the ensuing
confusion. In a true sense it would merely shift the debate to another
forum, and one not nearly so well placed as the Congress for bringing
the controversial questions to clear resolution.
In the nature of things, Mr. Chairman, the ramifications of the copy-
right issue in the context of rapid technological change will assure that
the new commission has a great many questions to debate and resolve.
But the commission's work will proceed on a far more liopeful basis
if the Congress accepts its own responsibility for setting workable
guidelines in the new law. In our judgment congressional endorsement
of the existing language of sections 107 and 108 would constitute the
necessary guidelines for print media.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hoopes follows :]
Statement op Townsend Hoopes. President, The Association of American
Publishers
Mr. Chairman. My name is Townsend Hoopes. I am President of tlie Association
of American Publishers, the extent and influence of whose membership Mr. Lieb
has described. I should add parenthetically that, in addition to representing
publishers, I have written two books and intend to write more, so that my con-
victions about the need for copyright protection are based on authorship as well
as publishing, I agree with Ms. Ringer that protection of authors' rights is at the
239
very core of the Constitutional provision for copyright protection, and that the
need for such protection is a direct consequence of the need to assure continuance
of intellectual creativity, a function which cannot be performed by a committee
but only by an individual.
On behalf of the Association, and also speaking to some extent for the other
proprietary owners here assembled, my purpose is to reinforce support for the
present language of Sections 107 and 108 of H.R. 2223, which Mr. Lieb has ad-
dressed in some detail. Mainly I will summarize our recent experience with the
library community in seeking to be responsive to pointed suggestions from both
the House and Senate Judiciary Committees.
The Senate report accompanying S. 1361 expressed the belief that Section lOS
provides "an appropriate balancing of the rights of creators and the needs of
users" ; at the same time, recognizing the complexities, the report urged the
partie.s — in this instance authors, publishers and librarians — to meet together
directly in order to develop more precise photocopying guidelines for "fair use"',
and also to develop workable clearance and license arrangements for copying
beyond f:iiv use. This urging by the Senate Committee repeated a similar proposal
by the House Judiciary Committee in 1967. Responsive to that earlier prop(i.*;al,
publishers and authors met with librarians in 1972 and again in 1973 for discus-
sions that became known, somewhat grandiloquently, as the Cosmos Club and
Dumbarton Oaks talks. The formula evolved at the Cosmos Club was that, if re-
prints of a journal article were readily available from the publisher or his agent,
the library would refrain from photocopying of its own. The formula evolved at
Duii'barton Oaks was that a journal imblisber would encode the front page of each
journal article with a serial number and a reprint price, and that a library making
a copy thereof would so advise a clearinghouse operated by the publishers. At
quarterly or semiannual intervals, the clearinghouse would bill the library for the
aggregate royalty charges and would then distribute the proceeds to individual
publishers. While both the Cosmos and Dumbarton efforts were deemed feasible by
the library participants, they were later both shot down by othcials of the several
library associations.
Since November 1974, the publishers have again been negotiating witJi the
librarians under the joint sponsorship of the Register of Copyrights and tlie
Chairman of the National Commission on Libraries and Information Science.
Eight meetings of a twelve-man working grovip were held between early Decem-
ber 1974 and mid-April of this year. I regret to say, Mr. Chairman, that there has
not been much progress to date, chiefly because the librarians have refused to
accept either the Senate bill or the guidances suggested by NCLIS and Ms.
Ringer as in any way a limiting frame of reference. We have asked them, for
example, to join with us in defining typical situations of two kinds : ( a ) those
that would clearly involve fair use copying, and (b) those that would clearly
involve systematic copying beyond fair use thereby requiring permission and
royalty payment. Their consistent reply has been that they know of no copying
done by libraries which extends beyond fair use.
I suggest. Mr. Chairman, there are two possible explanations for this unforth-
coming attitude. Either the library community as a whole is still attempting to
secure total exemption from copyright, and expects to get its way with the
Congress; or the attitude here expressed reflects a minority view within the
library community and is not therefore representative of the whole. In this latter
connection. I must say that we are struck by the difference in the attitudes we
have found among local librarians and those expressed by the oflicial spokesmen
of library associations in Washington. In the field, we have encountered wide-
spread sympathy for and understanding of the basic concept of copyright and of
the need for copyright protection, accompanied by a felt need for guidelines
that will more precisely determine the dividing line between fair use and infringe-
ment.
I would like to make brief mention in this same context of the Commission on
New Technological Uses of Copyrighted Works which was established by law on
December 31, 1974. Our Association has supported and does support this Com-
mission, but we believe it would be a serious mistake if the Congress should
seek to avoid coming to its own finite conclusions on key copyright issues, on the
ground that such questions could logically be deferred for consideration ])y the
new Commission. In our judgment, such a course would represent a serious
abdication of Congressional responsibility, and would increase rather than
decrease the ensuing confusion. In a true sense, it would merely shift the debate
240
to another forum and one not so well placed as the Congress for bringing the
controversial questions to clear resolution.
In the nature of things, the ramifications of the copyright issue in the context
of rapid technological change will assure that the new Commission has a great
many questions to debate and resolve. But the Commission's work will proceed
on a far more hopeful basis if the Congress accepts its own responsibility for
setting workable guidelines in the new law. In our judgment, Congressional
endorsement of the existing language of Sections 107 and 108 constitutes the
necessary guidelines for the print media.
Mr. Danielson. You have some more time, if you like — Mr. Lieb
h«s a comment to make.
Mv. Lieb. May I respond as one of the many lawyers who was in-
volved in the wonderful case of Williams c& Wilkins, in view of the
questions that were raised this morning about it ?
First of all, Mr. Pattison, although it is true that the Supreme Court
decision said the judgment of the Court of Claims is affirmed on a
four to four vote, the established law is that such a decision by the
Supreme Court lacks any precedential value whatsoever as far as the
Supreme Court is concerned.
Second, I would like to point out to those who are not intimately
familiar with the bi-iefing in the case, that the Solicitor General in his
l^rief to the Supreme Court defended the practices as shown by the
record on appeal, and there was a very limited, narrow record of only
copying of eight articles of at most three times of one, the other twice
of one.
The Solicitor General defended the practices that appeared in the
record as not systematic and said in two places in his argument that
had the case had before it facts involving a library consortium, such
as vras recently established by New York Public Library, and Har-
rard, and others ; had it had before it a case of true systematic copying
the argument would not be made.
So, the WiUiams cC' Wilhins decision, such as it is, resting on a four
to three decision of the Court of Claims, is to be read most narrowly
not only because of the narrow facts in the record, but because of
the reservation and doubts of the Solicitor General with respect to
the principle involved.
Air. Danielson. Thank you. Mr. Pattison ? I think we can safely say
we have about 10 minutes between us, you take the first 5.
Mr. Pattison. I guess I'm just primarily concerned in terms of the
mechanical problems once some satisfactory or otherwise agreement
is worked out by Congress, and the mechanical problems of preclear-
ance, what is an adequate charge, how the proceeds are distributed,
recordkeeping with all the varieties of libraries that we have — ^tiny
onf's and great big ones— I would like to have some of your comments.
I tliink Mr. Hoopes has been very helpful on that, but it seems to me
some kind of agreement has to be worked out, some complicated mecha-
nism undoubtedly will have to be worked out to resolve those questions.
]SIr. PIoopES. If I may, INIr. Pattison, I would like to refer that ques-
tion to one of the gentlemen who participated in the working group.
Mr. Karp. Mr. Pattison, may I start by pointing out, the papers that
Dr. Kenyon submitted contain a description of a prototype, a proto-
type in which the mechanics are described. They start in part from the
device of a code printed on the first page of every article, indicating
the price, the identification of the publisher, and so forth.
241
The next step would be tlie Xeroxing of an extra copy of that page.
In other words, when the article is Xeroxed, the first X)age will be
Xeroxed tvv-ice. Those first pages will then be shipped in bulk to the
clearance center which would process them. The processing could be
done in various ways in wliich I don't want to get bogged down,
including optical scanning.
Beyond that, I also should point out, that is only one possibility. The
study group was involved, and hopefully will continue to be involved
in developing that system. And, as Mr. Hoopes pointed out, one of the
purposes of the study to be undertaken by the National Connnission on
Libraries and Information Science is to test the system and refine it.
One more thing, and I will turn it over to Dr. Kenyon. The history
of cop3^right is full of technological revolutions, this is not the first one
by far. Phonographs, motion pictures, television, radio ail developed
during the 1909 act ; and frankly, some of them are much more com-
plicated and more devastating in their impact on prior methods of
distribution. The jump from printing journals to photocopying,
quantitatively, is nothing compared to the jump from publishing sheet
music to performing music on long-playing phonographs and radio and
television. That was a tremendous jump, economically. Yet, copyright
owners and users were able to work out systems for licensing, facing-
problems much more comj^lex than what we have here. It's poppycock
to talk about the complexity of these problems, compared to the co 
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